Rights You Give Up When Using the U.S. Visa Waiver Program (VWP)

Upwards of 20 million people per year enter the United States on the Visa Waiver Program (VWP). (For the exact numbers by year, see the “Yearbook of Immigration Statistics,” kept by the Department of Homeland Security.) The program provides an easy, convenient way for people from certain countries to enter the U.S. for short business or pleasure visits.

However, before deciding to use the VWP to enter the U.S, it’s important to realize what rights you might be giving up by not applying for an actual visa first.

Right That VWP Holders Give Up

People who apply to a U.S. consulate for a visa (most likely a B-1 business visitor or B-2 tourist visa) before entering the United States gain rights to:

• a hearing in front of an Immigration Judge in the event that the U.S. government wants to remove them (deport or send them home), and
• apply to extend their visit on the B-1 or B-2 visa or to change to a different nonimmigrant (temporary) status, without leaving the United States first.

If you enter the United States using the Visa Waiver Program, you don’t receive these basic rights. When your 90 days are over, you must leave.

There are limited exceptions to this, for example for medical or other emergencies, or if you fear persecution in your home country. Also, if you happen to marry a U.S. citizen or become the Immediate Relative of a U.S. citizen (minor unmarried child or parent) you will be able to apply for a green card while you’re in the United States through the process known as Adjustment of Status – so long as applying for the green card was not your original intent when you entered under the VWP, in which case your false statements upon entry could disqualify you from receiving a green card.

(For more information on family-based eligibility for U.S. permanent residence, see “Family-Based Visas and Green Cards.”)

Exceptions to These Rules

If you don’t fall into an exception, you really must leave after your 90 days is up. For example, if you receive a job offer and your new U.S. employer is willing to sponsor you for an employment visa or green card, your Visa Waiver status will not allow you to apply for it without first leaving the United States. People who enter on actual visas, by contrast, have the right to submit an application for a Change of Status to a USCIS office in the United States.

There is a special rule for people interested in attending school in the United States. Many students like to come and check out the campus before applying for a change to student status. You can do this without having to make two trips. However, you can't do it using the VWP. You can use a tourist visa (B-2) for the purpose of looking at schools and then changing status to student (F-1), but you’ll need to tell the consulate when you get your B-2 visa, so that a special notation can be added to your visa allowing you to apply for a change of status from within the United States.