Visa waivers are allowed to nationals of most West European countries, and Japan & Australia, permitting a visit to the U.S. for 90 days without extensions.  If a national of these countries overstays, he/she can be barred from returning to the U.S.   The New York Circuit Court of Appeals (2^nd Circuit) is one of the Circuits among 5 others of the12 Circuit Courts in the U.S. that allows visa waiver aliens to adjust their status in the U.S., if they marry an American even if they have overstayed their visa waiver period.  However, in the 6 other Circuits that include the 3^rd Circuit consisting of New Jersey, Pennsylvania, Delaware and the Virgin Islands, another rule applies:  a foreign spouse of a U.S. citizen who has a visa waiver and has overstayed has no defense against deportation if an immigration officer decides to expel the foreign spouse.

Recently a German-British dual national who came with a Visa Waiver was picked up by Immigration officers at his home and was taken away in handcuffs.  He learned he was deportable without having to have a hearing because he inadvertently overstayed his visa because he had filed his application for adjustment of status without enclosing his wife’s alien relative petition, his wife being the American citizen petitioner. An Immigration Judge could not help him because the Third Circuit Court had just held that even though he had entered legally, since he had exceeded his 90 day stay allowance, he was summarily deportable.   An article about the misfortunes of this couple was published in The New York Times indicating the harshness of this rule that had created a furor.  As a result, although the Immigration officers had followed the letter of the law according to the Third Circuit, the Immigration office released the alien into the arms of his wife, and he was able to correct the mistake in his application.

However, this case points out that 6 Circuits in the country including New York allow visa waiver holders to obtain permanent residence through their U.S. spouses even if they overstay, whereas the other 6 Circuits including New Jersey, Pennsylvania, Delaware, and the Virgin Islands, hold they may not.

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