Adjustment of Status on ESTA/VWP

[vishu_p]

Hi,
As immediate relative of US citizen, can my parent (74 years old) file for green card & adjustment of status, after 90 days for which the ESTA/VWP is valid and stay with us in US till the green card is processed ?
ESTA/VWP allows non-immigration visit for only 90 days and green card cannot be applied before 90 days due to the 90 day rule on immigration intent.
But considering he is immediate relative, if he decides to immigrate after 90 days, can we file immediately after his 90 days stay ?
His adjustment of status will be considered as valid in this case ?
We want to avoid consular processing considering his age and he can comfortable stay with us if he chooses to immigrate after 90 days.

[newacct]

Someone in the Immediate Relative category can do Adjustment of Status even if they entered on VWP, and even if they go out of status before filing for Adjustment of Status. However, someone is not supposed to enter on VWP with preconceived intent to apply for Adjustment of Status during that stay.

It is not true that Adjustment of Status cannot be applied for within 90 days of entry. You may be referring to the "90-day rule" in the Department of State's Foreign Affairs Manual, where, in the determination of whether someone misrepresented themselves at entry, they are presumed to have had preconceived intent to stay if they did Adjustment of Status or violated status within 90 days of entry. (However, that does not mean that doing AOS after 90 days would not be judged by the Department of State to be a misrepresentation -- if they find direct evidence that the person had preconceived intent, it would be misrepresentation no matter how long the person waited after entry to do AOS -- and does not mean that AOS within 90 days would necessarily be considered a misrepresentation -- other evidence can still point to there being no preconceived intent.) But that is not binding on USCIS, which adjudicates Adjustment of Status, as USCIS is part of the Department of Homeland Security. There is no official documentation on what factors and presumptions USCIS may use in determining possible misrepresentation at entry.

[vishu_p]

Thank you very much for the info and help