The Visa Waiver Program allows citizens of certain countries to travel to the United States for up to 90 days, for business or tourism without obtaining a visa.
The fact no visa is required does not mean there are no consequences if you overstay your visa waiver.
A visa waiver is a 90-day privilege that most European countries have along with countries like Japan. A full list of countries that benefit from the visa waiver program can be found on the website of U.S. Customs and Border Protection.
Many visa waiver recipients are not aware that they must depart after 90 days. They cannot extend their period of stay unless they get married to a U.S. citizen. If someone on a visa waiver program overstays their 90-day period, they will be removed.
While visa holders who overstay their time in the United States are permitted a hearing, this is not the case for those in the visa waiver program who must depart immediately in most cases. VWP participants cannot extend their stay or change their status to another category.
Not all countries participate in the VWP, and not all visitors from VWP countries are eligible for the program.
In some cases, people who have overstayed file for adjustment of status through marriage. At this point, U.S. Citizenship and Immigration Services (USCIS) may discover the visa waiver recipient overstayed his or her time in the United States and seek removal.
If you find yourself in this situation, an immigration attorney can help. The visa waiver recipient may be allowed to stay in the United States due to prosecutorial discretion. This is a procedure that allows an immigration officer to cancel the removal proceedings because the immigrant has a pending adjustment of status petition filed with USCIS.
The removal may be canceled if an immigrant has a pending adjustment of status petition filed with USCIS before the detention. An immigration lawyer may be able to show USCIS still has jurisdiction over a client even if he or she has been placed in removal proceedings due to the pending adjustment of status case filed previously.
In such cases, removal proceedings may be canceled and the immigrant paroled back into the United States. This is a complex area and a difficult one to negotiate on your own.