U.S. Citizenship and Immigration Services (USCIS) announced yesterday that it is changing its rules on…
I came to the U.S. on ESTA/VWP – can I adjust status?
Under the Visa Waiver Program (VWP) nationals of certain “low risk” countries are allowed to travel to the U.S. without a visa. These individuals register with the online Electronic System for Travel Authorization (ESTA) before traveling to the U.S. Most people use the terms ESTA and VWP interchangeably.
When someone comes to the U.S. through ESTA, are they allowed to seek permanent residency (i.e., a “green card”) in the U.S.? This process is known as adjustment of status. The answer is maybe… but the details are complicated.
This post includes legal citations for the reference of attorneys. Note that this post discusses law in the Ninth Circuit (Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Hawaii, Alaska, Guam and the Northern Mariana Islands). The USCIS Policy Manual discussed below, however, applies throughout the U.S.
Generally, those admitted under a Visa Waiver Program cannot adjust status (apply for a greencard) under INA 245A, however there is an exception for immediate relatives. For this reason the only the following family members of a U.C. citizens will be allowed to adjust status after entering the U.S. under ESTA: spouses, children (under 21 years of age and unmarried, and parents if the citizen is 21 years of age or older.
Under the so-called “no-contest” clause of the Visa Waiver program, enrollees forfeit the rights to (1) a determination of admissibility at a port of entry, and (2) to contest removal, other than by seeking asylum. 8 USC 1187(b). The Ninth Circuit has held that the no-contest clause does not apply to an immediate relative, having entered under a Visa Waiver Program, who seeks to adjust status. Freeman v. Gonzales, 444 F.3d 1031, 1035 (9th Cir. 2006). Rather, it is overridden by the procedural safeguard available to an application seeking to adjust status, who “retains the right to renew his or her application” if it has been denied. 8 C.F.R. § 245.2(a)(5).” Id.; see 8 CRF 245.2(a)(5).
An individual admitted under ESTA has a period of authorized stay of 90 days. Under the Ninth Circuit precedent described above, an immediate relative is permitted to seek adjustment of status if filed within the 90-day ESTA window.
What if the application is filed after the 90-day window?
The Ninth Circuit has held that adjustment of status cannot be sought after the 90-day ESTA window. Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Cal. 2008); see also Dehkordi v. Holder, 410 Fed. Appx. 34, 37 (9th Cir. 2010) (holding that because no application for adjustment was filed within the 90-day window, VWP entrant was not permitted to seek adjustment).
That would appear to be the end of the story… except that it’s not.
Despite the clear Ninth Circuit precedent (holding that adjustment cannot be sought after the 90-day ESTA window), the immigration service has taken a more generous approach. But only informally. In a April 7, 2011 liaison meeting with the American Immigration Lawyers Association (AILA), U.S. Citizenship and Immigration Service (CIS) gave guidance on this issue. See AILA Doc. 11040735. Here is what CIS has said:
All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order. Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon.
This informal guidance provides that unless the individual has been ordered removed, her adjustment application should be processed. Later, on November 14, 2013, USCIS published a formal policy memorandum entitled Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program.
USCIS official Policy Memorandum
The November 14, 2013 Policy Memorandum clearly affirms that spouses of U.S. citizens are allowed to adjust status past the 90-day period. The policy is as follows:
USCIS field offices shall adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the VWP, in accordance with section 245 of the INA. This includes cases where Form I-485 was filed after the 90-day period of admission. Adjudication shall occur prior to referral to ICE unless:
- ICE has issued a removal order;
- The adjustment applicant is under investigation for, has been arrested for (without disposition), or has been convicted of an egregious public safety offense as described in Part IV of USCIS Policy Memo 602-0050, “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens” (November 7, 2011); or
- There are fraud and/or national security issues that require resolution.
So what’s the bottom line? Under USCIS’s policy you are allowed to seek adjustment before or after the 90-day window as long as you haven’t been ordered removed (i.e., deported), arrested for certain offenses, or trigger national security concerns.
If you entered ESTA and are considering an adjustment of status here are two major considerations.
First, beware of the 30/60 day rule. Under this guideline a marriage is presumed to be fraudulent if it occurs within 30 days of when a person enters the U.S. After 60 days (but before 90 days) the marriage is treated as suspicious, though not presumed to be a fraud. Realistically this means that if someone applies for adjustment before hitting the 90-day ESTA expiration they are likely going to be subjected to strict examination of their marriage. These are cases where you want to do an outstanding job documenting the bona fides of the relationship.
Second, also beware of “immigrant intent” issues. The concept here is that a person cannot enter on a temporary status – such as ESTA – with the subjective intention of applying for permanent residency. If a person has such an intention she has essentially lied to the U.S. Government when using ESTA, since it is intended for those who plan to return within the 90-day window. If a person decides to seek a green card, then enters the U.S. with ESTA, she could be found permanently inadmissible to the United States. On the other hand, we often speak to clients who had no plans to seek a green card. For example, it happens relatively often that the U.S. citizen will make a surprise proposal during the visit. Generally speaking, the marriage and green card application were planned after the person’s arrival in U.S. in order to apply. If we believed that a person made plans before arriving in the U.S. we would refuse to file the case.
Finally, there are further requirements for adjustment of status aside from those discussed here. This post discusses only the ESTA-related timing issue. In short, ESTA adjustment cases can be complicated, and should probably be discussed with an attorney.
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Dear Greg, I read with care your post and many Q&A. I am still skeptical about what is _legal_ and best to do in my case because USCIS is a bit vague. I have been married for more than 5 years to a Japanese national and we have a son that is both Japanese and US national. I have been offered a positon in USA and we plan to move back to settle down. Actually we live in HK currently. Should my wife go back to USA under ESTA and after we can apply for the I-130 and I-485? The problem I see is that the airport because the agent may ask and we cannot lie. I suppose that despite USCIS allows in principle immediate relative to adjust their status (considering written policy) the problems is about the entry and the preconceived intent. I suppose the alternative solution is to file I-130 in one consulate abroad? Please let me know. Thanks!
ESTA can’t be used as a pre-planned vehicle to adjustment of status. If someone is outside the US and plans to seek residency, they should be looking into an immigrant visa.
Hi, when it comes to ESTA overstays and potential deportation has the political environment gotten any better since some of Greg’s posts that were made in 2017-2020?
ESTA overstays have never been a priority target of ICE intervention, to my knowledge. And if they ever were in the past, they are not now. Nonetheless, it’s important to tread very carefully given the expedited deportation/removal proceedings applicable to ESTA holders.
My mother is in the United Kingdom and I am a US citizen. She is traveling on ESTA soon to the USA – Texas . I am planning to file for her green card. Is this advisable? if so how many days after she enters can i file for her greencard?
Using ESTA with the pre-planned intent to overstay and apply for a green card is a *bad* idea. This is a misuse of ESTA that could result in a lifetime ban from the U.S. on fraud grounds. Do it the right way and go through the U.S. consulate.
I am here in the Usa on an esta on day 52 . I am a British citizen. My American Fiancé and I have decided to get married in the next few weeks, which would put it over the 60 days. What would I have to do to adjust my status from and esta to a spousal visa/ green card ?
Adjustment of status is pursued using the I-485 form. But I seriously would not consider moving forward without talking to an attorney (not me, I don’t do this work anymore). You can be placed into expedited deportation proceedings as soon as your 90 days is up, so you really want to tred carefully. Look for a lawyer affiliated with the American Immigration Lawyers Association.
Hi greg im US citizen with a US child born abroad in the UK (dual citizenship) and husband of 5 years a UK citizen. We flew back to US as we decided to move here but my husband was denied entry when he told them about his intentions. His esta visa was cancelled and returned home without enteringthe US. The police said it should not affect his marriage visa application as he is obviously eligible however he has to apply from the UK cannot as intented apply from within US. Could you tell me if this will affect our marriage visa application?
Sorry to hear that. I can only imagine how stressful that must have been.
I agree that this should not impact your husband’s immigrant visa application. Unfortunately that is going to take a while, so get that I-130 filed!
Hi Greg! I am a US citizen and my girlfriend of 2.5 years came to the US from the UK in March to visit me. I surprised her in May with a proposal and we were married in Florida last week. The change of status seems pretty straightforward, but the way we were married, with her on an ESTA, is making us a bit nervous as we begin her green card application. We have a well documented relationship over the time we have been together, including traveling to each other’s countries over COVID in order to stay together. Is there anything we should know about moving forward that could potentially jeopardize our plans to stay in the US? Any advise you could potentially help us with would be great! Thank you!
That’s hard question to answer in the abstract. There are ten entire categories of inadmissibility. Aside from that, there are all manner of mistakes that can potentially be made in the application process. Given the very tenuous situation that ESTA holders are in, these are one of the category of adjustment applicants who I think are well-advised to speak to a lawyer. Even if you just consult someone locally who advises you that you should proceed, that’s good piece of mind and well worth the cost of a consultation. At this point she will be subject to the three-year bar of inadmissibility if she leaves, so the stakes are really high.
I am US Citizen who has been married to my Dutch wife for 25 years this coming November. We have three children 22, 17, and 14 who are U.S. Citizens. We never lived in the US since we have been married and all three children were born overseas. I have recently been offered a job back home and will be moving back to the U.S. with COVID-19 restriction the immigrant Visa application may take longer than normal. Should she travel with an ESTA and adjust her status once arrives in the U.S.? Unfortunately, she will travel on a later date with my three children after the end of school.
No – the strict rule of thumb is that you should never travel to the US on ESTA with the pre-made plan to adjust status. That’s exactly the conduct I’m advising against in this blog post. It most certainly stinks, especially with Covid delays, but you need to pursue consular processing in this context.
I traveled to the US on a vacation while I was pregnant on Esta. Ended up overstaying but I applied for Satisfactory Departure. It was granted but when I had to travel back to US for my aunt Funeral ESTA said Travel not Authorized. Applied for a visa but was denied due to 214b. Would I be able to travel back to US on ESTA and How do I know whether I will be banned for 3 or 10 years?
The embassy didn’t find you (based on what you say here) inadmissible on overstay grounds. That’s where the 3- and 10-year bars come in. Rather, it found you inadmissible under INA 214 because you either,
Did not sufficiently demonstrate to the consular officer that you qualify for the nonimmigrant visa category you applied for; and/or
Did not overcome the presumption of immigrant intent, required by law, by sufficiently demonstrating that you have strong ties to your home country that will compel you to leave the United States at the end of your temporary stay. (H-1B and L visa applicants, along with their spouse and any minor children, are excluded from this requirement.)
If you’re married to a U.S. citizen that would probably explain what’s going on here, and you’ll want to start the immigrant visa (I-130) process.
UK citizen. Wife US citizen living in UK for 4 years (married 5 years) with 2 children (one US and one UK passport). My wife an I had planed to move to the US back to her family home to begin life there. At the airport my wife and both children were allowed through but I travelled on an ESTA and was refused entry and sent back home. I did have a return ticket however and explained to the officer my intention was to apply for my visa in the US if allowed based on a lawyer and if I was not I would return back and apply accordingly as we were unaware of the process. We were honest with the officer about our intentions and he withdrew my appication of admission.
Now I am back in the UK and am applying in the manner the officer asked by filing an i135. How will this affect my application going forward ? The officer seemed to think it will not affect it and maybe even help it.
Do you mean how would it effect your application that you were denied entry? In all likelihood it should not at all. If this was simply a denial of entry, and not expedited removal, it would not bar you from getting your immigrant visa.
Yes i meant how would me being denied entry for trying to come in on an ESTA visa and flying home on next plane back to UK affect me applying for my spouse visa. My wife and children are all in the US now.
Also thank you. Appreciate your reply.
I entered on a ESTA with my US citizen husband. We were intending to return to the country
So I am UK citizen and i travelled to the US under VWP in February 2020 before covid rally hit. I travelled to the US to meet my girlfriend and In that 3 months of my stay my girlfriend got pregnant. I returned to the UK in April and returned to the US in October 2020 to make it for the birth of our child which gettin to the US was as hard as I could imagine. 2 months into my 2nd visit my girlfriend wanted to get married so that I can be here permanently with our child. Is there anyway this is possible under VWP with me not having any intent of marrying on my visit. I have been here for 5 months (which USCIS has given extensions due to not being able to travel due to covid). Thanks Greg
I certainly don’t want to be in the situation of giving you case-specific legal advice based on a short exchange like this. So please consult an experienced immigration lawyer before pursuing adjustment, since the stakes are extremely high – especially with the kid on the way (congrats!). This sounds like the making of a scenario I’ve seen a lot with Covid, and really just ESTA generally, where the foreign national shows up and – surprise! – there’s a proposal and change of circumstances. Generally speaking, that’s a reasonable set of facts on which to pursue adjustment, because there was no pre-formed immigrant intent.
Hope that helps!
I’m a Green Card Holder-U.S Permanent Resident. My fiancé entered the US on ESTA two weeks ago; she’s a German Citizen. I surprised her with a ring, she’s my Fiancé now.
We have a little boy of 3 years old, we lived together for 3 years or so in another country. I had to come here 10 months ago, my first time in the U.S. and we had to stay apart from each other.
We want to get married, and be together as a family. We just don’t agree with the idea of being apart of each other for two years or more. I would like to know if it’s possible to get married on ESTA and adjust status. I’ve read that there’s a possibility for US citizens , but is there a possibility for Permanent Residents?
If not, can we get married on ESTA before she leaves with my son?
Thanks in advance. Looking forward to hear from you soon.
Orlando, congratulations! This sounds like many of the ESTA cases that I’ve represented clients on… Germany, for some reason, accounts for a fair number of them. So long as she wasn’t planning to use her ESTA as a jumping-off point for a green card, this is a process she could potentially pursue. (Certainly, I can’t definitively advise you without actually talking to you). But the scenario you describe, where the foreign spouse gets surprised by the US citizen’s engagement proposal, is a very promising starting point for adjustment.
Alternatively yes, you can potentially get married before she leaves, then go for consular processing. But check on the laws of your state, as some have a requirement that you reside in the state for a period of time before getting a marriage license. You can always go with a K-1 fiancee visa.
Best regards, and let me know if you need further help.
Thanks for your response.
I’m wondering if rules for adjustment of status when your Fiancé enters the country on ESTA-Visa Waiver Status are the same for U.S Citizens than for U.S Permanent Residents-Green Card Holders.
This is my principal doubt. I’ve read that there’s a possibility for US Citizens, but is there a possibility for U.S. Permanent Residents?
If rules are not the same, then we would have to go through consular process.
I would certainly need further help.
For spouses of U.S. greencard holders rules are different, aren’t they? Certainly they can get married in the U.S. and apply for AOS but by the I-485 interview she won’t be approved if her husband is not a U.S.citizen. Am I right? Also, being out of status for spouses of greencard holders is not forgiven.
I have the exact same question, what if a permanent resident married someone on Esta. Can’t find an answer.
Only spouses of U.S. citizens are eligible to adjust under the ESTA exception described here, sorry.
my husband from Germany need to go to US for a business trip and he applies ESTA VISA, meanwhile I came from Malaysia and could not apply the ESTA VISA. We are living inGermany. Basically I am going to US as a spouse. So how can I apply the VISA? Should I just apply B1/B2 VISA? but in this visa does not have any option as a spouse.
Hi, Nur. If you do not qualify for ESTA then yes, you will need a B2 visa. Note that most consulates are either closed for visa interviews or open on a very restricted basis.
I met my girlfriend in Spain in January and she came to the US on an ESTA in late January to come see me. She spent 3 months with me and ended up getting pregnant. We were looking at marriage options but everything was closed down due to Covid and getting married simply wasn’t an option. She went back to Spain right before the 90 days was up.
She came back to the US this week (through Mexico) on her ESTA and we got married in Vegas. We are now finding this to be much tougher than we expected.
She’s now 5 months pregnant and we are having a hard time trying to figure out how to go through the process correctly. As the father, I hope this makes the case for a legitimate marriage but don’t want to take any chances.
Any advice would be appreciated!
Hi, Jeff ~
The primary concern probably won’t be marital bona fides. I would be more worried about immigrant intent if she came over on ESTA and was married shortly thereafter. Seriously, this administration is no joke. Lawyer up, or at least get a couple of good consultations. You need to take this very seriously. This is the toughest adjudication environment in 20+ years, easily.
I’m also seeking some advice. Is it possible to adjust status from ESTA to H2a visa ( temporary worker)?
Unfortunately, no. An “immediate relative” (family member of US citizen) adjustment of status is the exception to the general rule that you can’t change/adjust status from ESTA.
I am currently in the US with my US fiancé and two children who are dual citizens under 2 years old. I am from UK and have a valid esta. My K1 visa appointment has been cancelled for the 4th time due to covid and the proclamation looks like it won’t be rescheduled until 2021. I had a return flight booked for my K1 interview and intended on coming back to live with my family in the US since I just helped them relocate. Am I able to marry whilst in US visiting on my esta and apply for AOS ? I don’t want to be separated from my family. Please help
I wouldn’t want to give you the green light without doing a complete review of your situation. But this very much sounds like a standard (for us) ESTA adjustment case. The fact that there was a prior I-129F doesn’t mean you couldn’t pursue adjustment. But talk to us or another law firm so they can take a look at immigrant intent issues and all other inadmissibility problems.
I have been working in the US for the past 3 years under the H2B visa. I have been in a relationship with my girlfriend for 2 of those years. I was planning on proposing and getting married when I returned in the fall but with the Covid-19 pandemic going on my option of being able to return in the fall for this job might not be an available option. Once the borders open back up for travel Would I be able to travel on an ESTA visa and get married and then apply for a green card?
Hi, David ~
As explained in this article, you can’t use ESTA with the plan to seek adjustment after entry. That’s an act of fraud that could lead to a lifetime ban from the U.S. You guys might want to just go ahead and get started with a K-1 fiance visa.
I am also seeking advice. I went to college in the US, and have also worked under J-1 years ago. I have visited in many instances using ESTA, because my brother and sister live in the US. Now, my parents spend a good amount of time too via B-1 for that same reason. Recently, I was employed under H1B for 2 and half years as well. After my employment was done and returned home to Spain, I met a US citizen and we began to get to know each other. She visited me in Barcelona last fall, and this past Christmas, while I visited my family in the US via ESTA (I am still here as my 90 days have not yet expire), we have continued to see each other, travel together within the US, etc. We have fallen for each other and now even spoken about getting married now (I´ve been in the US for about 62 days). We obviously want to be together but she would like us to live in the US preferably, as she has a child from a previous marriage. The plan is fine with me, since a good part of my family lives here and I am used to spending time in the US, but I am stressed with the possibility because we would like to get married before my stay in the US comes to an end, hopefully being able to stay with her, and I would like to do correctly, if it is at all possible.
I appreciate any advice in advance. Thank you
Hi, Andres. We’re helped many couples in similar situations adjust status. If the decision was made after arrival it does not constitute fraud. But there are ton of other factors that weigh on whether your case would be approved. Given the very fraud-focused adjudication environment you would be very well advised to seek counsel *before* filing.
Thank you for all this information. I had a question regarding marriage on ESTA:
If my fiancée comes and visits me on esta, and we get married in the court, and she returns after a few weeks and I file for her i130 (not adjusting status), will there be any issue with immigrant intent or such? I haven’t discussed this with her, but I’m against the adjusting route just because of the dangers. Is there any issue with us getting married here and filing i130 after she returns? Thank you Greg!
That strategy is 100% above the board and honest. The only problem comes at the port of entry if CBP doesn’t believe her story and what the plans are. Search our website for travel + I-130 and you should find the related article.
I came to the us on ESTA. I met this amazing guy and fell in love. I’m starting the divorce papers now, and we want to get married. IM ALMOST IN THE 90 days but I don’t want to leave. But we can’t get married until my divorce comes trough. What can I do?
You definitely should consult a lawyer. ESTA overstays can be deported very easily, with almost no possibility of defending against deportation. Staying past the 90 days is a very very high stakes proposition. (Remember who is president).
My boyfriend from England entered the US using ESTA on May 22, 2018 not later after we got married in the courthouse, June 12, 2018, to be exact (I’am US born Citizen). This was his 3rd time coming into the US with ESTA to come and visit me.
With the help of an attorney we filed for adjustment of status I-485 on October 2018, including the I-130 petition for alien relative and the I-765 employment authorization. He already did the biometrics appointment and the current status of his I-485 application is: ready to be scheduled for an interview.
Will we get in trouble because he got married while he was in the us with the ESTA?
He didn’t apply for the ESTA with the intentions of using it to come into the US and get married, it just happened!
Is there anything that we can do to prove this or are we completely screwed? Any advice?
Hey, Karen. We do lots and lots of adjustment cases for folks who enter on ESTA. As discussed in this post, you can’t use ESTA for the purpose of adjusting. But if plans change after a trip is started then there are lots of scenarios where you can complete this strategy.
I just got married in the U.S. without the intent of returning any time soon because we are missionaries in Zambia. However, our assignments have shifted very recently, causing us to have to stay in the U.S. for an extended period of time (6-8 months) from September onwards for training, just as my ESTA is about to run out.
I doubt that we will have enough time to file for a change of status since we leave about a week and we have a busy schedule until then. What visa would you recommend for someone who needs to be in the States for an extended period, is a spouse to a U.S. citizen, but has no intention of becoming a resident?
Unfortunately, ESTA entrants cannot normally file for “change of status” (which refers to going from one non-immigrant/temporary classification to another). Filing for adjustment of status based on marriage is a limited exception to that rule. You can apply for a short extension of ESTA, but that is normally the only non-immigrant change that can be made. If you are talking about only a one-week extension or so, then you should set up an InfoPass appointment at your local USCIS office and request the ESTA extension.
Hello, I am a US Citizen and I married a man from the UK while he was here on an Esta Visa. We have not yet filed an I-130, so the immigration process has not yet begun. It has been six months and he is coming for a visit. What documentation will he need to prove that he is just visiting and does not intend to stay. He has ties to the UK and we are still getting familiar with the laws, so we are in no way ready for him to move here. I appreciate any advice.
Hi, Nicole. Check out our post on that topic at https://www.soundimmigration.com/may-visit-u-s-b-1b-2-esta-filing-130-129f/
Hello, what about: Enter the US on an ESTA, get married to an US citizen within the first three weeks, leave the US after about a month (including the three weeks), come back a week later, still on the ESTA, and seek a green card (obviously there is the intent you speak of, but not spoken out loud by the potential green card holder). How will this look in the eyes of the immigration service and laws?
How about use a fake passport while you’re at it?
Kidding, of course.
But seriously, this is a horrible, horrible (horrible, horrible) plan. You’re trying to find a way to evade the rules barring immigrant intent and use of ESTA – that’s a bad idea. If you’re outside the United States and trying to seek resident, you almost certainly need to be planning to do so through consular processing. **Do not** try to game the system. Standards are extremely tough these days and you are jeopardizing your entire future if you don’t do it the right way.
Hi I’m married to my wife a European citizen and I want to let whoever reads this comment and responds that I’m truly grateful for this post! Very relieved to see this info on what we’re currently handling. I have no questions but just wanted to Express my appreciation for this info! It took some time finding but I will save this info and pass along to any others in need of it! Thanks again!
My wife’s esta visa is about to run out. We have been married for over 9 years and just recently I came back to the states for a six week training course. She of course came with me along with our 2 children. We enrolled our oldest in school and decided to stay for the long run. I was told that I should fill out the i-130 form before her visa runs out. Then wait for approval, in the states. At the time of approval she should go back to her home country and set up an interview and get the immigrant visa. This was told to me by an immigrant specialist with the government.Is this the best course of action? What are my options?
No, that is horrible, horrible advice.
If she overstays her ESTA and returns to process the I-130 at a consulate then she could be subjected to a three or ten-year ban on returning to the US (depending on whether the overstay is 6 months or a year).
You should talk to an attorney to assess whether you can proceed with an adjustment of status of if she does indeed need to consular process. If the latter, then she needs to return before the expiration of her ESTA. ESTA overstays are subject to expedited deportation procedures, which carries a heavy consequence if carried out.
If she does decide to consular process then you can certainly file the I-130 while she is here. But that is aside from the overstay problem.
I’m a US Citizen, and I’m dating somebody who has an ESTA, that has visited me several times under that ESTA in the past year, and I several times to them to their country. This person is getting a divorce, but it’s complicated and time consuming. This person has also had an L2 visa under their previous marriage and lived in the United States.
If I don’t coordinate with this person on the marriage, and we get married on one of the trips, then, in general, this person can file for adjustment of status?
I’m not opposed to marrying this person and then going through the I-130 process, but we know we want to be together and want to pursue the fastest route, and it also sounds like it’s the case that this person wouldn’t be able to visit the US easily in that case for many months under current processing times.
It seems a bit strange and cruel that the only way to be with this person expediently is to explicitly not tell them about my plans, including any planning for a marriage, especially when they will still have a career at home, working for a US company in fact.
Interesting hypothetical. The intent issue does turn on the foreign national’s plans, not those of the petitioning US spouse. So when the foreign national accepts an unexpected proposal this would normally steer clear of intent concerns. With that said, a lawyer could not advise a US petitioner to seek to evade immigration rules. In these situations the I-130 or I-129f route is normally the safest and better approach.
I tried to post my comments multiple times but it’s not shown on the site.
I am an EU citizen. I entered the US in August 2018 using the visa waiver program. I have been here for almost 2 months. My husband has a pending adjustment of status through work. His priority date is current. We were married in March 2018. Now my question is, can I adjust my status to that of a permanent residence? I consulted with two attorneys one said that I can and the other said that I can’t, and at the moment I don’t know what to do, I need to make a decision soon, my time is running out and I don’t want to over stay my visa.
Hope to get an answer from you soon.
Hi, Laurie. No – the only category of individuals who can adjust status after entering on ESTA/VWP are those married to U.S. citizens. One of those attorneys needs to take a look at the statute.
Hi. I entered in 2015 on an ESTA from Australia, and then applied for AOS before the 90 days expired, due to my marriage to a USC. Before the case was decided, I voluntarily withdrew my application, and departed the USA in 2017. There were no orders in place, and as I say, the decision hadn’t even been made. I now work for a US-based multi national and they need me to visit for work. I think I need a B-1 visa? I definitely am not moving back to the USA, but I do need to visit occasionally now it seems. ESTA will no longer work for me, right?
Hi, Lisa. You may still be able to get ESTA issued to you and may as well try. But the broader issue is that *type* of work the firm wants you to perform in the U.S. Only certain job functions fall within the parameters allowed for ESTA or B-1 holders. Your firm should be retaining counsel for you to ensure that this is done properly.
I’m a green card holder, and it’s my first time here in the US. My fiance and I have been dating since 2014 but we’re officially together since 09/2017. We have decided to get married and I’ve been told that we can get married here in the US. But… I’ve also read that its not legal to marry in US if you enter here with an Esta. I just can’t agree with the idea of staying 2 years away from each other…
I’d also like to know if its maybe possible(after getting married and making the petition ) for me to leave America for a few months so we can “shorten” the time away from each other.
Which is the best way to proceed?
Any advice will be appreciated
Thanks in advance.
Hi, Renela. The issue isn’t really the marriage itself. It’s perfectly lawful for someone to marry while in the US on ESTA. The issue is the strategy that you should then follow for immigration. You definitely cannot leave the US, then re-enter on ESTA with plans to seek residency. Depending on the facts of your case – and we would need to talk to you to actually assess your options – you may be eligible to seek adjustment of status. If so, you can then get “advance parole” to depart the US after the application and reenter to complete the process.
Thanks for your reply, I did apply for visa waiver to just visit United State and the application or visa waiver will expire on 5th of October, I am not planing for a residency it is just for visit, is there any issue if I am not travling due to my job, busy or can I apply for another visa waiver for only visiting United State as tourist, thanks for you response, Salim British citizen
Hi, Salim. Yes, you can reapply for ESTA/VWP. Alternatively, if you’re reasonably close to the London consulate, you might want to consider applying for a B-2 visitor’s visa. There’s a school of thought that this makes issues at the border less likely because the consular officer has already screened you for the immigrant intent issue (versus ESTA which, as you know, is just an online application).
I met my boyfriend 4 years ago who is an Irish citizen (via naturalization) After 4 years of long distance relationship (he frequently visits me) we got married last week during his latest visit in Vegas. As he is on ESTA, can he apply for change of status? He has been financially supporting me for 4 years ( I don’t work and was a single mother before meeting him) and we have proof of him, sending money to me from abroad. What is best way to proceed? Change of status or shall we apply for his green card and than he waits outside USA for his interview? I just can’t agree with the thought of him being away for 2 years (current wait time approx) He is a Doctor and don’t want a change of status if he can’t work… Any advice will be greatly appreciated.
The issue of showing the legitimacy of marriage is really different from that of timing. If he entered on ESTA with no intention of seeking residency you may be able to adjust status, though this process takes more than a year currently. Whether it’s us or another firm, you should really have a lawyer examine the facts pertaining to “immigrant intent” since a negative finding on that can carry a life-long ban from the US.
I apply for for a visa waiver two years ago to visit the United State but till now I didn’t travel and the application for visa waiver will expire soon, is there any issue for this thanks.
Do you mean that you’re considering entering the US on ESTA or – as discussed in this post – considering applying for residency?
Hi! I’m currently living in the US with my husband (we got married a year ago) I initially entered in a student visa, which very recently expired. I’m about to apply for my adjustment of status, but I’m aware that once I do that – I can’t leave the US because it is considered abandoning the application. It has been a while since I’ve seen our friends and family back in England (where my husband is also from) and he’s asking for us to visit. If I leave now and return on the ESTA, will I have the same issues of immigrant intent for abusing the ESTA program? Is it completely advisable that I wait? I’m just concerned because I’m aware that most I-485 applications are currently taking a year to process. I can’t imagine waiting so long without seeing my aging grandparents.
Yes – you absolutely should not try to reenter on ESTA and then adjust. But you can file an I-130/I-765 at the time of your adjustment application to get a temporary travel permit while the I-485 is being reviewed.
Hi, I entered the US on the VWP from the UK just over 5 years ago. I overstayed and have resided in the US since this time. I met my bf 2 years ago and are soon looking to get married. I haven’t seen my family for the five years and miss them and would like the ability of being able to visit the UK and being able to come back to my then husband to continue living in the US. Can you advise me in which direction I should proceed? Since meeting my fiance 2 years ago the idea of being deported and not being able to return to see him and being barred for 10 years has haunted me daily. Before Trump was elected I heard that Obama was perhaps putting in place a path to citizenship for undocumented immigrants that had continually resided in the US for 5 years or more. I don’t know if this would apply to myself or if even this policy even came into fruition due to the political change. Any help or advice would be greatly appreciated. Thanks in advanced.
Keoni, under the facts you describe you will have a ten-year bar from the United States if you depart. You should talk to a lawyer immediately about moving forward with an adjusment of status case. Given the current enforcement environment it is critical you not delay. If you were to come to ICE’s attention you will then be precluded from moving forward with an adjustment case. Time to get moving!
I`m a 38 yrs old Italian man that 10 month ago became the Dad of a baby with an american woman in Italy.The baby have double passport Italian and American.We lived in Italy the last two years and we come for a vacation in May during this vacation my partner was contacted to apply for a good work in California and then she choose to stay here with the baby.I need to stay here and we now that the only way is to marry each other.My ESTA expire 25th of August.What do you suggest me?I don`t know if I want to live here in the future but right now I need to stay for One year at least.Can I apply for a green card after marriage? Can the marriage be celebrate before the ESTA expire?
Buonasera, Angelo. You need to talk to a lawyer – whether us or someone else – to see if there is an “immigrant intent” issue. A marriage-based adjustment to resident status is likely your only available strategy since ESTA precludes most other options. You can always relinquish residency – in other words, it’s not like you have to commit to holding the status forever.
I am a Taiwan national. My husband and I got married in Seattle four years ago. He was a green card holder then and was working in the US. We decided to live separately after the marriage. Two years ago my husband became a US citizen. During those four years of our marriage, I have traveled to US many times to visit my husband and his family; my husband has traveled to Taiwan many times to spend holidays with me and my family as well. This past March, I came to the U.S. on ESTA. After spending a few days together, my husband begged me to stay in the United States permanently. I agreed and filed for I-130, I-485 and I-765. Now it’s almost August, I haven’t gotten my EAD yet. I am wondering if I am doing anything wrong. In our case, I don’t think we’ll have any problem proving that our marriage is genuine; however, am I still in danger of being denied simply because I had entered the country on ESTA which pretty much means I told CBP at the time of entry that I did not intend to adjust my status to permanent resident?
Hi, JT. There are a couple different issues here. 50% of all EAD applications are taking upwards of 6 months, so it’s no issue of concern that the EAD hasn’t issued. In any event, issuance of the temporary EAD is automatic and doesn’t have much to do with the merits of your adjustment case.
In terms of the adjustment case, this could be problematic. It will be your burden – should the issue arise – to convince USCIS that you didn’t enter on VWP with the plan to adjust. That could be a tough sell given that they would expect you to want to be united with your spouse. We don’t know the details of your case, so it’s hard to say if it’s one we would have advised a client to file. The stakes are extremely high in this adjudication environment, where denials are automatically referred for deportation.
Hey, to file for Adjustment of Status on an ESTA, what forms do we need to fill out? I came over to visit my fiance for the summer on my ESTA with the intent of going home but I just found out that I’ve failed my university degree and my fiance wants me to stay here and marry him so we are looking into the Adjustment process but I’m confused as to what forms I need to fill out and send off. Thank you 🙂
Hi, Meg. Check out our post and video here.
Perhaps you can guide me in regards to my situation. I’ve read every single comment and I am thankful to have found you.
I am an American citizen who is now married to someone who came to the States on an ESTA back in 2014 and ended up overstaying. We started dating in 2017 and some months ago we got married. I have all intentions of starting the Change of Status process BUT I do not know what to expect. Some have advised to wait , others to move forward, while others tell me he will be denied under our current administration. My question is, do we have a chance ? Is there something in specific we have to look out for?
He has never been in any type of trouble so he has a clean record.
Your guidance is greatly appreciated!
Hi, there ~
The situation where you wouldn’t want to adjust status is if you deliberately misused the ESTA program. That is, you can’t enter the US on ESTA with plans to adjust status. But if there was a change in circumstances – such as COVID – and now you find yourself exploring that strategy, that’s a different matter. Obviously, I can’t really advise you on your specific situation without talking to you. But we’ve had plenty of ESTA adjustments during this administration, so it’s not true that you just can’t do this anymore.
Hi I am from Korea and came to the U.S. with ESTA visa waiver. I just have been approved for the labor certification and trying to apply for i-140 and i-485 concurrently but I have come across some confusions with my eligibility to apply for i-485 as ESTA/Visa waiver holder. My confusion is that it says that I need to have a lawful status in the states while I am in the process of i-485 but some say that ESTA/Visa Waiver is not considered a lawful status to apply for i-485 as it is not an actual VISA. I am unsure if I can stay in the U.S with my Visa waiver for next 90 days which will be plenty of time to apply for both i-140 ( doing expedited service ) and i-485 without a problem, Visa waiver gives me 90 days to stay and the timeline that I am looking at is I apply for i-140 this week and it should take about 2 weeks to get approved then i-485 will be filed as well and once i-485 is filed then I need to work at the sponsoring company for next 180 days and it allows me to go upto 180 days after my first 90 days given by visa waiver. Do all these seem to fall on the right path? because I also hear that since visa waiver is not considered a lawful status I have to go back to Korea and apply for DS-260. I know my situation seems overwhelming but your advice and suggestion would be very appreciated. Thanks!
Hi, Jennifer. It is your employer’s responsibility to ensure you have legal assistance through this process. Those who enter on ESTA are typically not eligible to adjust to lawful resident except when based on marriage to a U.S. citizen. It’s unclear to us that you have a viable strategy apart from consular processing. You need to talk to the legal team that’s handling the PERM and adjustment process because their job is to help you.
Hello, your article states that a marriage will be considered fraudulent if it has occurred within 30 days of arrival in the US. I came to the US from the Netherlands on the Visa Waiver Program on June 1, 2017. I was planning to stay for a month but got married to a US citizen on June 9. We are a gay couple. We had met one another on a dating website approximately 2.5 months before I came to visit my partner in the US. The decision to marry came already when I was in the US because it was just clear that we were in love and had a good click with one another. At that time we didn’t invest time in researching all the legal details as we were enjoying the start of our relationship. My partner submitted Form i-130 on July 12, 2017 so it’s about 33 days after we tied the knot. It was approved 8 months later and now we are in a process of applying for a green card. What I understand from your article is that the potential is there that my green card application will be denied because our marriage took place only 9 days after my arrival in the USA. My question is – what supporting evidence would we need to provide so that my application can be approved? Is it a common practice to include supporting evidence with my green card application or should we wait until our interview?
Hi, Tine. From your comment it’s unclear if you are seeking adjustment or consular processing – this article is about adjustment. Issues regarding immigrant intent don’t really have anything to do about the bona fides of your relationship. Evidence concerning bona fide doesn’t do anything to combat concerns about immigrant intent with the ESTA program. And if you are seeking CP then the immigrant intent concerns shouldn’t be an issue anyway.
Hello, my husband and I are already married. We were living in Lion, France for 3 years. He is US citizen and I’m French. We went to Portland to see his family for the holidays some months ago. I travelled with my ESTA. The problem is that while we were visiting, my husband got a job offer and he wanted to stay. I have been already 90 days here, so now we don’t know if it’s possible to apply for a green card for me because he wants me to stay here with him. I would appreciate any advice. Thank you.
Hi, Elizabeth. These ESTA cases – with issues of immigrant intent – are highly fact specific. We certainly wouldn’t want to offer case-specific legal advice advice without actually talking to you. As a general matter, ESTA entrants can adjust even past the 90-day window, as described in this article. The type of situation you are describing – with a job offer after arrival – is a prime example that we see with our clients, where adjustment can be appropriate. But given the expedited deportation rules that apply to ESTA you need to be very, very careful. We do these cases all across the country if you decide you want to consult.
Hi! I’m an italian citizen and I am married to a US Citizen. We got married two years ago. We have been living in Italy for all the time but now my wife is feeling depressed (she is taking medicine for this reason) and I don’t really know if next time we visit her parents in US she will come back to Italy. So in the case she didn’t want to come back to Italy, may I apply for an adjustment of status and get a green card? Thank you so much for your precious help!
Ciao, James. Adjustment of status is only for folks already in the United Sates. You would be looking at a different process called consular processing. If your spouse is an Italian resident you may be able to pursue an expedited process through the Rome Consulate (details here). If not, the I-130 has to be filed in the U.S. Let us know if you need help.
Hi! My family and I are US citizens. I have an Aunt and 2 cousins who are interested in immigrating for permanent residency. What is the best, fastest way? Applying for a green card? Would it be a bad idea to come on ESTA for a simple visit and returning home to apply for the green card? They will be coming from Taiwan.
Hi, Eunice. There is no mechanism in U.S> immigration law to petition for an aunt or cousin. So there strategies – if any – would relate to employment, investment, humanitarian options such as refugee, or potentially the diversity visa lottery depending on their nationality.
My boyfriend is in Greece. I’m in the US. We’ve had a long distance relationship since mid 2017. I went to visit him for the first time toward the end of last year for 10 days. He then came to stay with me for a month earlier this year on an ESTA Visa. In all the research we did, it seemed like he HAD to have ESTA to stay with me for as long as he did. We had no intention of getting married right now. Initially we wanted to see what it was like in both countries and see if there was a way to move to one or the other to be together. Then if we could decide which country to live in we’d get married a couple years down the line if possible. Now it seems like the only way we can be together in either country is if we get married NOW. The distance is hard to bear and money is tight but he’s decided he would move here to the US and we’re looking to get married if that is what will bring us together. My concern is the ESTA Visa he has. We were unaware this could impact him becoming a US citizen or us getting married at some point. There are no immigration lawyers where I live so we’re trying to piece together information via the internet and ask around. I thought about visiting him again in a couple months and marrying him in Greece or inviting him over on the K-1 Visa. But I’m just not sure what to do since he has the ESTA. Any ideas or suggestions would be greatly appreciated. We’re really looking for what takes the least amount of time.
Hi, Nat. We responded to this earlier but it looks like it might not have been posted correctly – sorry about that.
A marriage is legal for U.S. immigration purposes if it is valid where performed. So a couple can potentially get married anywhere, so long as the marriage can lawfully be completed there. With that being said, in these scenarios it is almost always faster and more cost efficient to just move forward with the K-1. That way you don’t have to delay yourself with traveling for the purpose of getting the marriage complete.
Our firm works with clients all across the globe – we’re set up to make that easy for clients wherever they are located. So if you want advice on how to proceed and help with the process just let us know.
Okay we are stuck i think.
I am currently living in New Zealand ( US citizen) have been married to my husband NZ citizen for almost 5 years and we have two kids who are both NZ and US citizens and passport holders. We applied almost 6 months ago for a I130 and have tickets purchased in March. We understand that he cant live or work without his green card so we have made arrangements / work in the UK for him but he wants to help move and settle us in the USA before he heads to the UK until the green card comes thru what do we do?
Hi, Katie. It is theoretically possible for A New Zealand citizen to be in the U.S. on ESTA or a B-2 visa while the I-130 is playing out. But the foreign citizen has the burden over overcoming the presumption of immigrant intent. Basically, he would need to prove that he plans to return abroad for visa processing once the I-130 is approved. He should also research the rules on “third country processing” at the London consulate. He will need to either return to New Zealand for his visa interview or secure approval to have the case transferred to London.
Hi, I came to the US via the ESTA and married a US citizen.
I was wondering what the outcome would be if I filed for an Adjustment as I do have a criminal record from 2.5 years ago and one 2 years prior to the most recent conviction.
I could prove that it may not be a CIMT (due to alcohol being involved) if that was allowed and have never served jail time for the offences, also, I’ve moved on from life since making these silly mistakes and take care of my wife whom is disabled and needs assistance and support medically and financially.
How would one go about all this ?
Filing this application without talking to a lawyer would be like doing your own dental work. An offense doesn’t cease being a CIMT just because alcohol was involved – that might only make the situation worse. Likewise, it’s totally impossible to assess the consequences of that offense without (a) knowing what the offense was and (b) reviewing the actual record of conviction (ROC). You need to have a lawyer pull the file. Also, CIMTs are not the only category of offense that can bar you from adjustment.
Thanks for the reply, I could get hold of the mitgation involving the crimes from my lawyer possibly to give a clearer idea as to what happened.
The crimes were a reckless fire raising (reckless burning) and most recent from then the charge was theft by house breaking (was found behind a bar passed out, nothing was taken outside the premises).
The charges are serious I understand but the whole story behind it would help explain these charges as for the most recent, I was so intoxicated that I can’t remember due to blacking out and was not in control to the volume that I had consumed that night. ( I had an emotional dependancy on alcohol but have since learned and recovered).
I know this may all sound irrelevant and I apologise but this is just to give you a better understanding of my current circumstances.
This is a serious situation and you need to consult a lawyer. The alcohol use by itself could be an inadmissibility issue, leaving aside the crime. But the crimes, too, need to be individually assessed based on the actual record of conviction, not just a short summary.
I married my American citizen fiancee came in my home country in August this year.
We did not realized it was going to be such a lengthy process so
I came to the US in October 9th on ESTA with the intent to return in December.She was going to visit in July again so the separation would be more bearable.
The time of return came and she was begging me not to leave and try to adjust status here.
Would it be possible?
My authorised stay will expire on Jan 9th.
This really depends on the specifics of your case. It sounds like you did not intend to seek residency at the time of your entry, in which case you are not intentionally misusing ESTA. But there are a million other factors that govern whether you could actually adjust status.
Hi Greg. This has been hands down the most resourceful piece of information for us fellow VWP nationals who are married to US citizens. So my case isn’t much different than most others on this forum, but here it goes: I am a New Zealand Citizen and I studied (f1 status) in New York (Jan 2015) followed by a 12 month OPT (allowing me to work for the duration of my OPT which was valid from Oct 2015 – Sep 2016), In the earlier months of my OPT, I met my husband (Jan 2016) and we had been in a relationship until we eloped and got married this month (Nov 2017). My company applied for my H-1B during my OPT which I did not get as it is a demanding lottery process. I moved to London in Oct of last year (2016). My parents are quite strict when it comes to eloping and as such we have kept our marriage only to ourselves. I visit my husband as much as I can and as much as my job would allow me. we are trying to be together on completely lawful grounds and as such while my husband did entertain the idea of filing for my petition during one of my visits I decided against it. My company is preparing my L1 visa however almost all of the L1 visas have come back rejected from my London employer. I do not have the intent to apply for an adjustment when I visit my husband in the future however, in the event that it gets too much for us to stay apart and we decide to apply for the adjustment during my visit on VWP, would there be an established “Immigration Intent” given that both my employers have applied for work visas in the past which were rejected (presuming my L1 gets rejected too)?
Thanks for the kudos.
We see lots of “immigrant intent” red flags in the scenario you describe above. Since you’re applying for an L-1, you’re presumably an accomplished professional. In this sort of scenario we would probably advise getting started with the marriage-based *consular* process. With good professional ties you would still be able to visit your spouse while the process is pending. But – and this is really important – we would definitely want to actually consult with you before advising you on how to proceed. Let us know if you want to do that.
My Australian wife and I are currently living in Sydney, waiting for her spousal visa to be approved. We have applied with an I-130, and are awaiting any responses. Is it possible for her to enter the US with me on an ESTA, and hope for the visa to be approved while we are in the US?
Check out our post here on exactly that issue.
I am curently in a US with my american citizen fiancee. My airline canceled my return flight with no refundable, so we started to think about staying here, getting married and apply for a green card.After all we read, it´s kind of confusing. How could we proof it wasn´t an intention? How risky is it? We are pretty sure we will hire a lawyer, but we don´t know if we can be succesful with this way of getting the green card. Also there is a new 90 day rule, so if we decide to do that, we have to wait until my ESTA is expired and then get married? Is there any good chance to make it work or should we give it up and find another way (even if we don´t wanna wait years separated).
Thanks for your time
Lea, you need to be very, very careful about this. Here’s our post on the new 90-day rule. A perceived violation can result in a lifetime ban from the United States. On the scenario you describe you might have a plausible 245(A) adjustment case, but you would want an attorney to look very carefully at the specific facts of your case. Let us know if you want help – we work with clients all across the country and marriage-based cases are our bread-and-butter.
thank you for a fruitful site. A lot of needed data.
I am married to an American lady since 2002. We have 3 kids together (12, 2 and 1 year). I am a Swedish citizen. My wife and kids decided to move back to USA early this year. They are happily living there now. Due to my work, I visit them from time to time. But soon my ESTA stay will be over (2×90 days). I am thinking, therefore, to apply for a Green card.
1. Do I adjust my status while I am in US within my ESTA stay OR better applying using a consular process outside USA in a consulate or embassy?
2. If I apply inside the US, can I still travel during the application process?
Hi, Fadi. A person who is outside the U.S. should almost never plan to come to the U.S. on ESTA and seek adjustment. Doing that would generally be an act of fraud that would result in a lifetime ban. Instead, the appropriate route is generally consular processing. Let us know if you want individualized help – we work with clients all over the world.
Thank you, Greg.
So with your help, I can apply using a consular process?
Am I allowed to come to the US while this process is ongoing?
I am married to a US Citizen and have been waiting after receipt notice of my i-130 for about 5 months. Is it possible for me to go to the US to be with my wife and adjust status whilst using the ESTA?
Thanks in advance!
Good question. Here is (we hope) a good answer: link.
A british born minor who entered USA on ESTA overstayed by 6 months and is now getting married to a USC. Will he be able to change status through marriage?
Hi, Dada. Probably yes. The 6-month overstay by itself doesn’t make the person ineligible, but we would definitely want to assess all the other factors bearing on adjustment eligibility. Having overstayed by 6 months, a person is barred from the US for 3 years if s/he departs without gaining legal status. And ESTA overstays are subject to expedited deportation if they’re caught. So this needs to be handled very, very carefully – and fast. The sooner you get the application filed the better shape you’re in.
Let us know if you want to work together on this. We help clients with ESTA –> adjustment all across the country.
I’m a french citizen and I’m visiting the US with ESTA. My husband is a US citizen (also french citizen) and we got married when we are arrived to the United States. Now he found a job here and he’s going to stay in the United States until June (We want to stay in France after June). I would like to stay with him and don’t come back in France during this period. Can we apply for I-130 and adjustment of statue at the same time ? Can I stay in the United States during the process ? Thank you for your help.
Hi, Clementine. This sounds like a potentially viable scenario. Please read this post on “immigrant intent.” This could be the type of fact pattern that could support an adjustment case and could allow you to stay in the US while you pursue residency. If you want to consult an attorney about moving forward with that strategy we’re happy to do so.
I am under the ESTA and living in Europe, and my husband is now an US citizen, we met in 2013 and got married in May this year. I was in the US from early April and left back to Europe in mid-June. When I landed in April I told the USCIS officer I was getting married during this trip, they asked more questions but as long as I was leaving the US they were ok (back then my then fiancée was still a permanent resident).
Since we very first met we’ve been travelling back and forth, both of us, to see each other and spend time together and I always respected the 90-day limit, always stayed 2 weeks, max stay was 2 months. Now I am travelling back to the US in October and was wondering if I can ask for an Adjustment of Status when I land ? Am I gonna be in trouble if I do so ?
Hi, Maria ~
It’s considered an act of immigration fraud to enter the U.S. on ESTA (or a visitor’s visa) with the intention to seek residency. Learn more here. Instead, the strategy in the scenario you describe should almost certainly be seeking an immigrant visa. Learn more here.
I posted before but it never showed on this page… trying again.
I am a GC holder, have applied for N400 and I am currently awaiting my interview to be scheduled.
My fiance recently completed her F1 OPT, is now within her 60 day grace period, and intends to leave the country within 3 weeks.
We have been together since 2012 and we live in SF Bay Area.
We wish to marry before she leaves. She intends to come back on ESTA (Singapore citizen) once I have taken the citizenship oath and we can apply for her GC. However we aren’t very clear on “when” to marry. Do we marry now, while she’s still in the US? Or do we marry when she is back here on ESTA. Regardless of when the ceremony happens, we are not filing anything until I get my citizenship.
Hi, DK ~ If she re-enters on the scenario you describe then she risks (1) being turned away or (2) a lifetime fraud bar. Instead, the appropriate strategies are likely a fiancee or marriage-based visa, depending on the preferred timeline for your marriage. Given the substantial lead time for those, you will want to choose your strategy sooner than later. For example, you may wish to move forward with an I-129F ASAP.
Let us know if you’d like individualized advice on your options.
Hi there I am not an immigration lawyer, I can only advise you based on what I know. Since you are a GC holder, your girlfriend cannot adjust her status if two of you get married here in the United States. She has to go back to her home country, you file a petition (Form I-130) for K1 spouse visa. The processing time (waiting time) for K1 visa to be approved is 6 months. She will have to do the interview at the US consular in her home country.
She could only adjust her status from F1 to permanent resident if you are a US Citizen.
How far is your interview? Do you know?
If she goes back to Singapore and re-enter US via F1 with the intention to get married and adjust, then she will face issues at PoE.
Second scenario, if you’re confident that you could get your citizenship within 2 months, then ask her not to leave. Leave only once you guys submitted all the paperwork, and she receives her EAD (This is the travel document that allows her to travel outside the country while waiting for her GC).
Well, things changed substantially after I posted. We got married in late August 2017. A week after, her dad was admitted to the cancer ward due to an immediate relapse. She left to help early Sept and since then I got my citizenship and passport. Her dad passed away and she came back on ESTA. We discussed the possibility of her staying or not due to her mom being elderly and alone in her home country. After some conversations we decided it would be best for her to stay. We are preparing the AOS packet.
She came in mid December and has been here for 1 month.
Very sorry to hear about her father.
Based on your description here this sounds like a situation where you would face very serious immigrant intent concerns. It’s not clear – based on what’s described here – that it would be a good idea to move forward with adjustment.
My husband and I were recently married on June 16th. He had come to the USA to visit me and see my graduation from college in May. We decided to get married during his visit on a very spontaneous occasion (We picked up the marriage license and got married the same day). We are wanting to file for the I-130 and I-485, but have been waiting on papers (our marriage certificate is one). His 90 days is almost up and we are unsure about what they mean when they say to file it before 90days (does that mean it has to be sent and in the mail before 90days or does it mean they have to receive it before 90days?)
He did miss his scheduled return flight in July and I wondering if that would raise red flags and if it is best for him to just return home or do we have a good chance with filing the adjustment of status?
I strongly recommend that you get independent legal advice on this topic. Your husband will be considered deportable once he overstays the 90-day time limit and it’s very important to be careful here, especially given the current political atmosphere.
Hi, I have a question, My boyfriend currently is serving on a peacekeeping mission. When he ships home in August, I’m going on an esta (visa waiver), to spend three months, with him. We’ve been talking about Marriage, how it would be nice. Not to circumvent any of the esta rules, but just so I can take his name. After the 90 days, I return to the UK, can someone please advise me what happens next? I really want to live with him, he want’s that too, so what would be our next move?
I’m missing him like crazy, as is he, any help greatly appreciated.
Hi, Trevor ~
First of all, we appreciate your boyfriend’s service – please tell him thank you.
In this sort of scenario the appropriate strategy is almost always to pursue a visa from the U.S. consulate rather than seeking adjustment of status (as described in this post). A fiance visa will generally be faster than a marriage-based visa. What would *not* be a good idea would be to marry before you attempt to travel to the US on ESTA. This would raise concerns by CBP that you plan to “jump ship” after arrival and pursue residency. If the plan is to immigrate to the US then it would probably make sense to talk to a lawyer immediately about getting the ball rolling on a fiance visa. He can start this process even while he’s on deployment.
If you decide you want help we offer a discount for all active duty families.
Thanks for your continuing answers! Most helpful!
I am a Canadian citizen. I was issued a green card 35 years ago and went onto live and work in the US for 15 years. After that, my US employer transferred me to Canada were I worked for 3 years after which I retired. My wife (a US citizen) and I stayed in Canada. We have lived here since for 20 years and now intend to move back permanently to the US.
Is there any hope that I could reenter the US on my green card which I still have and has no expiry date on it. It was always our intent to return to the US. So we have filed 1040 tax forms every year, our six children live in the US and the majority of my income is from the US. I never submitted any paperwork saying I was abandoning my US domicile. I never applied for a reentry permit
We would move back as soon as our house is sold.
What are the chances the US would let me reenter on this old green card?
How would I pursue this?
Hi, Joe: We actually just did a training on this for other lawyers (here). Your status as an LPR has almost certainly been abandoned at this point. We would *strongly* advise you to get started on a new I-130 petition. Trying to reenter on the old card could lead to a total mess, where you are denied entry or placed into deportation proceedings on arrival. The new I-130 will be somewhat tricky for purposes of meeting the financial sponsorship requirements of the Form I-864. But if you still have US-based income that can be used to meet the requirements.
Let us know if you’d like help with the process. We work remotely with Canadian clients all the time on cases just like this.
I am currently under the green card renewal process but entered the USA on an ESTA visa.
I have a social security number also as I first came to the US when I was a child.
Do I have to leave the country within 90 days and re-enter stating I am awaiting green card renewal ?
Hi, Janny: Usually people use the term “greencard” to refer to status as a lawful permanent resident. A lawful permanent resident has authority to live indefinitely in the United States. So it’s a bit confusing if you are saying that your only status is as an ESTA holder.
I am on H1B (my PERM has just been initiated, if that matters) and my gf is an Australian Citizen. She has been to the US on ESTA once in the past stayed for couple of weeks. Now, we’d like to marry in the US. I’d appreciate if you could advise me on:
1) Should we get married on her ESTA after 30/60 rule so that I can file for the change of status as my dependent (I am asking this because this is not for permanent resident)?
2) Should we just marry here and ask her to go back to Australia and I apply for her fiance/spouse visa there?
Hi there Greg,
I met my boyfriend online late last year, and after months and months of texting and calls. We decided to meet, my first visit to US I only stayed for 12 days and flew back to my country.
Months later I decided to take a long break off work (quit my job) to pursue a certification (this required me to write papers, and attend an interview)… and because I’ve got that amount of free time, I bought myself a return ticket to US – to have a vacation with my boyfriend. We did travel around the states.
Now I’m still here in the US, my boyfriend proposed me.. and we’re thinking to do AOS. Do you think we can do the AOS? What sort of bona fide documents should I be providing to prove to them that our relationship is true?
We would definitely need to take an individualized look at your facts concerning immigrant intent, among all other elements. The evidence of bona fide marriage is only one small piece of the puzzle.
My situation is similar to many that you’ve described here but as you say, every case is different.
I met my wife who is a US citizen 5 years ago and we’ve now been married for over 3 years and she obtained Australian permanent residency just over a year ago. My wife’s parent’s are very old and she’s desperate to move back to the US to care for them asap.
I’ve been looking at the K3 process but this seems to take a while and can be thrown into a bit of disarray if the I-130 is approved prior to the I-129F as I’d then need to drop the K3 application and start the process for an IR1 which could further delay things. I have heard that it is possible to seek to have the K3 process expedited but I’m not so sure about this.
Is it feasible for me to enter the US on a ETSA with the intent to find sponsored employment under the E3 scheme but in the event that I don’t obtain a job offer, to file for an adjustment of status with the argument that my original intent was to seek sponsored employment?
Hi, David: We’re unable to provide case-specific guidance in this public forum. But as one important general matter, K-3s are almost never a viable strategy in light of processing standards adopted in USCIS. In reality, they almost never provide a quicker route than just completing the CR/IR-1. On the immigrant intent issue, this is highly fact specific – wth very high stakes – and we strong encourage you to speak with an attorney.
Hello Greg, thank you very much for sharing the information with those including me that are in the similar situation. I do have a couple of quick questions to ask if you can get me any suggestions.
I live in Vegas. My fiance and I met last summer(May 2016) here and she was in the U.S just for vacation purposes at the time. We started dating since then and she left in August for South Korea. In the following December, she came back to visit me on her ESTA for about two weeks, and a couple days before she left, I did a surprise proposal. After a serious discussion with her, we decided to have her come back here and live here permanently. Now, it is just a matter of how we are going to further proceed our marriage lawfully.
1. Is K1 visa the best option I have? About how long would the process take in a case like mine?
2. Would it absolutely be too risky for her to come back here sometime in March on her ESTA, wait 60 days, and then marry?
3. What other options would you recommend if there is any?
A personal but very significant circumstance I am under is that she and I are having a baby. In a situation where she needs my care the most, I am certainly and desperately in need of getting this resolved very soon. Your advice would greatly help. I sincerely appreciate it.
Thank you very much. With warm regards,
Hi, Eric: Congratulations on the engagement and the baby! It’s not possible to offer case-specific advice in a forum like this. But here are some general pointers.
(1) Fiance visas are typically substantially faster than marriage-based visas. For a couple already planning on seeking residency adjustment of status should not be used – that is, the foreign national should not enter on ESTA with plans to seek adjustment.
(2) Entries on ESTA can be made while a fiance/marriage visa is pending. But the foreign national has the burden to convince CBP that she plans to return within the ESTA window and not overstay. Whether that is realistic depends on the facts of a case and the person’s demonstrable ties to the home country.
Especially with a baby on the way you should get individualized advice from a lawyer if at all possible. This will be one of the most important legal events of your life, and you should do it properly.
Hi Greg, first of all thanks for all the info, it’s really helpful.
One question, my wife is American, we met in the US when I was on a study abroad and we’ve lived together in my home country for about 2 years now. We are considering moving back to the US, but the political mood in the country with all the recent events and Trump being elected has us a bit nervous about it (I’m Hispanic, though not Mexican). We’ve considered using the VWP as a sort of “trial period” and then if we decide to stay apply to status readjustment. Is this considered visa fraud? Should we wait at least 60 days to do it?
Hi, Sergio: It wouldn’t be an act of fraud to use ESTA/VWP *if* you plan to return within the 90-day window. But you certainly wouldn’t want to plan to enter on ESTA/VWP and then seek adjustment… especially not now.
It’s really sad to hear that the political environment would make you second-guess a future in the US. Just know that there are lots of Americans – and new Americans – who don’t support the anti-immigrant rhetoric. I don’t know where you were planning to move, but check out the Pacific Northwest.
I’m a naturalized US citizen and without doing any research, decided to propose to my girlfriend during her vacation in the US. I’ve searched all over the internet about our possibilities moving forward and came across your website that had the most comprehensive and easily understandable information. Thank You So Much for that.
If possible, I’d like to know if adjustment of status is possible for us and how difficult that process may be.
We’ve had an ongoing long distance relationship for about 3 years now. In these 3 years, she’s only been to the US once to visit for about a week. She entered on ESTA/VWP. Most other times I went to visit her or we’d travel somewhere for vacation together and meet at the destination. She had been working at a company for about 2.5 years and decided to quit. She had some trouble at work so I flew to her to be with her for about 1.5 months for support before she finally quit. After she quit, we took a vacation together to Europe for 2 weeks, then couple weeks after she came back with me to the US on ESTA/VWP again. She had bought a round trip ticket to go back with the exact intention of going back and searching for a new job. Her return ticket was booked for about 81 days after she entered. This was the longest consecutive time we’ve been able to live together. As we experienced our growing feelings, I proposed to to her around the 54th day of her stay on a trip to Oregon after almost 3 years relationship. It is now the 58th day of her visa. If we decide to get married around the 63rd day and begin the process for adjustment of status, would there be any forseeable problems? Will our 3 year relationship plus my frequent visits to her country and multiple foreign vacation be seen as fraudulent behavior when filing for adjustment of status because she originally entered on ESTA/VWP?
Thank You For Your Time. Any Help Will be Greatly Appreciated
Hi, Gregory: Glad you found the resources on our site helpful. I really can’t provide a detailed, fact-specific assessment just through this blog forum. The resources on the site are completely free, and if you’d like an individualized assessment we’re happy to meet with you both, which we do with clients all over the world.
I am a green card holder.
My father came to visit me with the visa waiver program in August.
Unexpectedly he got heart attack and advanced heart failure syndrome by the end of September, he was sent to the hospital ER and had 2 heart surgeries.
He got discharged after 18 days in the hospital, and still have all kinds of follow-up appointments. He had to adjust 3 times medications, there are still some medications the doctors are still holding because his heart is so weak that he cannot tolerate the medications all at once. The doctors said they might add the medication back on month by month while he slowly recovered.
I am asking this question here because this is obvious a medical emergency.
I went to USCIS field office with all the possible documents and letters from the hospital, and they extended my father’s satisfactory departure date for another 30 days.
His heart condition is not going to be fully recovered to the condition which allows him to take 24 hours flight back to Asia by November 30th.
My question is: what is the next option??
I heard so many different answers, and getting really confused.
1) USCIS administrator told me, it is so rare the case of my father that he personally never signed this extension ever before. However his supervisor granted him to extend it.
He has no answer about after November 30th. However his guess would be – the decision should be no longer made by USCIS, but it has to be granted by the department of the homeland security.. maybe by a CBP (custom and boarder protection officer)
2) whether the request should be submitted to CBP, no one has any answer for it.
I am even not sure if i should bring my father by Nov 30th to the airport and request an interview with CBP there, which seems to be a very dangerous way to do so.
Also I do not think my father can handle this kind of stressful situation..
3) I heard that he can apply for a humanitarian parole, but usually this should be requested when he is outside of US. USCIS also said they do not handle with humanitarian parole..maybe a CBP does.
4) Trying with all the options if they do not work, and if my father’s heart condition cannot allow him to take flight, I will just not allow him to take flight, I also believe no airlines and passengers want to experience someone’s life and death during their travel..
However this is the last thing i will consider, because i do not want him to have any bad record. He never intended to immigrant, and he never did any crime, he just wanted to visit his daughter and did not expect the heart attack..
Thank you if you could further help me to answer the questions.
Hi, Zoey: I’m sorry but these issues are very different than what we help clients with, which is going from ESTA to green card status. We don’t have experience with ESTA extensions, which folks typically handle for themselves, sorry.
Great webpage, yours is the most complete resource i’ve found yet, including USCIS and CBP. Unfortunately, i’m pretty sure I know the answer to my question, but I am desperate and hoping there may be something I haven’t noticed. I am a US citizen, my new wife is Dutch. We lived together in NZ, and I moved back to the US last year. She is currently overseas, still living in NZ, and we have been collecting information with the intent to file an i-130. She visited the US earlier this year with ESTA, and we got married in Europe a few months after that. It looks like there will be no legal way to file the i-130 and adjust status if she returns on ESTA, but I have been hoping that there may be a loophole due to her ESTA application preceding our marriage. Any luck? USCIS has told me that it is no problem, as long as she enters the country legally we can file and adjust status. CBP seems to be more knowledgeable, and has said she can visit but cannot adjust status from ESTA.
Thank you for your help!
Hi, Josh: I’ve probably said it before on this forum, but I wish I had $1 for every time USCIS gave future-killing advice over their 1-800 number. The law is *very* clear that you cannot enter with ESTA with the pre-formed intention to adjust. Doing so – well, you probably saw on this website – can make the person permanently inadmissible to the US. Plus there’s a good chance she would be turned away at the border.
The proper procedure in a case like this is to go through consular processing. WE’ve seen some I-130s get approved in as little as two months (but don’t count on that). Really all you can do is get the I-130 filed ASAP *and* do it correctly.
Hi Greg. I am a US Citizen original from Spain. My mother comes to visit me and my family twice a year with ESTA, but I would like her to stay longer so that she can be with her grandchildren. I have not yet discussed the idea with her, but I believe she will like it. What is best, wait until she comes with ESTA and then discuss the issue and apply for adjustment of status within the 90 days if she agrees to stay or just be safe and use consular proceeding?
Hi, Juan: As a rule of thumb, I would always encourage someone outside the US to view consular processing at the primary route to the US. The bigger question, though, is whether residency status is what would be most helpful. Depending on the scenario, a B-2 could be better.
My Chilean friend/partner is currently in the US on the VWP. In Chile he is legally separated from another woman with whom a divorce is in-process. Thus he has no immigrant intent now, nor do we have our own marriage plans (yet?) — still, he wishes to extend his nonimmigrant stay with me in the US without returning to Chile at this time. We know that extending his stay strictly under the VWP is not allowed. But can he apply for a tourist B2 — say, at a consulate in Mexico — and if so, should he attempt this before his initial VWP 90 days are expired, or should he depart the US on-time and apply for a B2 after the VWP 90 days are up? Can one apply for a B2 *while* currently on a VWP entry? Again, he is trying to avoid the expense of a return to Chile at this time… We are staying close to the US/Mexico border now, but I want to help him make the right decision regarding the B2 before we attempt a trip to a consulate there. Thanks in advance 🙂
Hi, Clair: So, unfortunately he cannot change status in the US. Most consulates are very strict about “third country” cases (such as a Chilean applying at the US consulate in Mexico). Generally they will allow that only in extraordinary cases… not just to save an expensive plane ticket. We’d have to look talk to a current consulate about their current rules to see if a particular scenario was viable.
As a more general matter, it can be very tough to travel to the US on a B-2 (or ESTA) when someone is in a romantic relationship with a US citizen. Not impossible, but he will have the burden of convincing the border patrol that he plans to return home. The immigration laws don’t make these long-distance relationships easy.
We understand that on the VWP he cannot change from nonimmigrant to some other status — but B2 is also nonimmigrant, right? Is that considered a status change from VWP? We imagine that there must be many examples of VWP entrants who legitimately end up wanting to extend their stay for legitimate tourist reasons. Also: he (and I) do intend to return to Chile in the summer. I myself am a dual citizen with both a US and a Chilean passport, and we have no real plans for him to immigrate — just extend his stay. Any further thoughts on this?
The VWP statute is very, very strict. A VWP entrant who is *married* to a US citizen may (if other conditions are met) adjust status to permanent resident. Change of status is different than adjustment of status – those are just two totally different processes under US immigration law. And a change of status from VWP to B-2 isn’t permitted. It’s just very hard to extend a stay under ESTA/VWP, since the purpose of the program is for short-term travel without the typical hassles of a visa.
I live in Arizona amd am a U.S. citizen. My husband is a UK national. I met my husband online last year and during summer vacation when he was in the US on ESTA, we got married (July 2016).Soon after he left to take care of preparations to our wedding festivities in France. In September I traveled to France to meet his family and friends and celebrate our church blessing there. Recently both my husband and I returned to Arizona (he again on ESTA).
Initially we thought to move to France, but now we are thinking of making Arizona our home. My husband has a return ticket for December, but we don’t want to use it. Can we apply for his green card now?
Hi, Nicole: Congratulations, first of all! Have you had a chance to read our post on immigrant intent? . It really depends on the facts of your case, and when you guys made the decision to pursue adjustment. Since it sounds like that decision was made after you arrived most recently, this could be a feasible adjustment case. If you’d like a strategic assessment of your options you’re welcome to set an appointment.
My husband is a UK citizen who resides in France. We met online last year, and got married in the US during summer vacation (July 2016) when he visited me on ESTA. Soon after he left for France to prepare for our wedding festivities there. On September 10, 2016 we celebrated our marriage in France with his friends and family. Right after we returned to the US together (again he entered on ESTA). I live in Arizona. Initially we entertained the idea of moving to France. However, now we are thinking of making Arizona our home, for at least two years. We cannot afford transatlantic trips back and forth, and we don’t want to be separated for long months waiting for CR visa. We want to be together. Can we apply for his green card now while he is here in the U.S.? His return ticket for France is for December 3 (before his ESTA stay expires) but we think of not using it. What would you advise us to do? Thanks!
Hi, Nicole: What would I advise? I’d advised talking to an attorney before starting down any immigration path. You need someone to give you individualized advice based on a careful look at the background of your case. It sounds like the idea of pursuing adjustment came up after your husband’s most recent entry. If so, adjustment could be an option for you (assuming there aren’t other issues that aren’t apparent from your post). If that’s a viable option, you could potentially secure his residency status in as little as 6-8 months. Not only does he not have to leave during this process, but he can’t – otherwise the adjustment application is automatically denied. Let us know if you’d like help – we do adjustment cases for folks all across the country.
Thanks for your post and how great you explained everything. I have entered the US with ESTA with the purpose of coming back to my country but I finally proposed to my girlfriend and we got married a week ago. I have a few questions that maybe you could help me.
1. My 90 ESTA permission days of staying on the US expires this weekend and l am still waiting to receive one paper l need from my country to fill out the I-485. l red my wife can send the I-130 form separately from the l-485. In this case, is it better to send the l-130 at different time to make sure that at least it was send before it was the end of my permission or what it is more important is to send the l-485 before the ‘deadline’? Is the procedure exactly the same if l send everything after the 90 days?
2. My wife was abroad last year so she can’t prove she had enough income to sponsor me, would it be valid an actual contract to prove she can sponsor me the current year?
Sorry if I did not explain myself well
Hi, Chris: Sorry, your comment got buried and I didn’t see it until now. Darn spam comments from Russia.
Congrats on the marriage! It’s definitely best to file the I-130 and I-485 together. If you have one document that you’re waiting for it’s generally okay to file an incomplete packet and just anticipate that you’ll get a Request for Evidence. That’s a bit sloppy, but better than filing late. The consequence of filing past the 90-day window means that you could potentially be placed into expedited removal (deportation) proceedings – an important reason to file beforehand.
Your wife is a mandatory I-864 sponsor, even if she had no domestic income. But if she doesn’t meet income requirements then you’ll have to prove up the support requirement either with assets or another I-864 sponsor. Lots of details on that here.
I would like to ask you if you can please give me advice regarding me and my partner situation. She has ESTA visa and she has been here in US visiting me couple times already(Im a US citizen). I want to ask you if I apply for her for Fiancee visa I-129F which process usually takes 6-9 months depends, is she still able to travel and enter the US with her ESTA during the whole process or she has to stay in her country and waiting as long as she is in the “process”. Legally she not committing any fraud(I guess maybe Im wrong) but I would like to know if I apply for I129F is that putting her ESTA “on hold” for future travels until shes approved for Fiancee visa.
Hi, Max: Foreign nationals are still *potentially* allowed to travel to the US on ESTA while an I-129F is being processed. But the foreign national always (always, always) has the burden of proof to convince the border officer that she intends to go home in 90 days. The I-129F raises a red flag because it shows the intent to seek residency in the US. Now we have clients who travel to the US all the time on ESTA with an I-129F (or I-130) pending. But the person can also be turned away at the border. Worse, if CBP thinks the person is being dishonest you can potentially be placed in expedited removal proceedings, or have a fraud finding made – that has devastating long-term consequences. Without knowing you personally as a client I wouldn’t want to say whether this sort of travel is advised for your fiancee.
Thank you so much for your expertise and professional advice. Just one more thing if I understood from your answer ,border officer can see that she’s in the process (with I129F-I130 if I apply now) even if she’s coming here with her ESTA afterwords?
I will def recommended your services to all my friends that might need any immigration lawyer.
Thanks, Max. I advise my clients that they should expect all information to be shared across all federal agencies. Now of course there are all sorts of problems with the data infrastructure of our government. But absolutely the agencies share information, certainly within the immigration field. CBP notes show up at consular interview, and USCIS filings are viewed by CBP officials. Always assume that the federal officer knows everything and always, always, always (always, always, always) tell the truth.
Hi Greg. Your article is just what i needed. Thank you.
All comments below are helpfull as well.
I entered U.S.A on July 17 with ESTA. My girlfriend (i met her on a previous trip last year) got pregnant. She already misscarried. I never planned to marry her but now i am going to. I proposed before the misscarriage but i dont want to change my plans now.
I have been advised after the marriage (in September) to aplly for I-130 and I-485 and do a medical as well. Then i dont have to leave US.
How soon i will be able to travel abroad while waiting for the temporary green card? They told me, i will get a temporary document like a credit card that allows me to travel and work, is that true?
I will apreciate any answer. Thanks
Hi, Leo: Thanks for your message. I’me very sorry to hear about the loss of the pregnancy.
In terms of timing, the temporary travel documents are required by law to be issued within 90 days of application (so the date when you filed the I-130/I-485). But you must also have filed the I-131 application, which is the one for the travel document. Assuming all filings were correctly made, the card should be issued in 90 days – and you’re right that it comes on a “combo card” (with temporary work authorization) that looks like a credit card with your photo. If the card doesn’t come in 90 days then you can make an INFO Pass appointment (https://my.uscis.gov/appointment) and ask them to issue the authorization in person. They sometimes will refuse to do so, however, if your card has already been printed by the central office and it simply hasn’t been mailed yet. But if never hurts to at least make that request.
My now husband and I met online. After nine months of texts and Skype he arrived on June 6th in the U.S. for an extended visit as he was taking a long vacation at the end of one job, before rejoining the work force. We had become genuine friends and wanted to spend time in person to find out if our suspicions of a romantic connection were accurate. Well we were very accurate. Friendship is the best foundation for a romantic connection. We were married on July 29th! Now we have finally set an apt for his cos physical exam and have all other forms filled out and ready to send. My concern is that his vw is over tomorrow, the 3rd. Because he can’t work and I had to make an expensive (for me) move mid June our finances have not allowed for us to petition for cos before now. My question is do wet need to worry about him being overt his vw time (or anything else really)? Thank you for your time.
Hi, Heather: I’m just now seeing this post at the end of the three-day holiday weekend. Congratulations on the marriage!
Yes, as you will have seen in this post there are risks of filing adjustment past the 90-day ESTA window, especially if you’re outside of the jurisdiction of the Ninth Circuit. If your I-485 application was timely filed then at least he will not accrue unlawful presence. That’s important, since after 6 months of unlawful presence a person is barred for 3 years after departing the US (12 months is a 10-year ban). Based just on this post I’m not in a position to advise you about whether the adjustment application is likely to succeed, but we’re happy to talk to you individually if you want. If finances have been problematic then there may be concerns for sponsorship with the I-864 Affidavit of Support.
I am a U.S. citizen and I recently moved back to the U.S. from Germany. My wife (we’ve been married 6 years) was born in Russia but moved to Germany when she was a child and has German citizenship. My new born son was born in Germany, but he has U.S. citizenship by birth abroad obtained at the U.S. consulate. My wife and my son are still in Germany. I would like to have them come here as soon as possible (November 2016). The fastest way looked like it would be the ESTA and then have her adjust her status within 90 days of entering the U.S.. However the intent clause looks like that would not be a good idea. I am reading horror stories of the petition taking up to a year. Does this mean I would be separated from my new born son and my wife for a year waiting on the petition? There has to be a better way!!
Brian: You are correct that the immigrant intent issue effectively precludes the ESTA –> adjustment of status option in situations like these – and your wife would risk a life-long fraud bar if she tried. Unfortunately the best you can do for your wife is get the I-130 filed ASAP and done correctly. You son can enter the US at any time since he’s a US citizen (once he has a passport), but of course that doesn’t help you until your wife’s petition is approved. The best route would have been to file the I-130 petition long ago, but I know that doesn’t help at this juncture. Now the best route is to get the petition filed quickly.
My boyfreind entered on an ESTA.We have just got married and i am preparing the i 130 and i 485.We have had to find a sponsor and his Aunt who is American is going to sponsor with the affidavit of support.My question we can not file the affidavit of support before the 90 day ESTA runs out as his aunt has to gsther the relevant information for the form.Can we still file the i130 and i485 before the 90 days and produce the affidavit at a later date?
Hi, Spork: Congrats on the marriage!
If you don’t file the I-864 at the time of your initial I-485 filing then one of two things will happen. Either the packet will be rejected (pretty unlikely) or (more likely) the immigration service will issue a Request for Evidence (RFE). The RFE will delay the processing of your application, but isn’t otherwise a “problem.” Remember that you are required to file your I-864 even if you know that your finances aren’t sufficient. For exactly the reason you describe, my firm has sometimes filed an adjustment application without the joint sponsor I-864 – since we couldn’t get the joint sponsor’s information in time – just knowing that we’d get the RFE.
Thank you for the informative article.
My wife and I are Legal Permanent Residents, UK citizenship. We temporarily lived in the UK for a few years for work but maintained a residence in the USA. While in the UK we had a child, and were approved for her i-130 and were just waiting for consular processing to complete. In December 2015 I had to return to the USA for my job, and we brought my 5 year old daughter with us – she was admitted under VWP. I called USCIS and told them she was currently in the country as a tourist on a VWP and they told me it would be ok to file for adjustment. She had her interview and a few days later we were told she was denied as she entered under the VWP. Had they told us this initially we were quite happy for her to leave the USA and wait for the consular processing to complete.
I realize we have made a mess of things and probably should have got a lawyer earlier but what are our options now? The i-485 was filed before her 90 days expired, and we are in a 9th circuit state, but we are not citizens, only green card holders.
Many thanks for any advice
Paul: I can’t tell you how often I hear about bad advice from USCIS. Under the immigration statute your daughter is not an “immediate relative” since you and your wife are not US citizens; for that reason she is not eligible to adjust status from VWP. That’s very, very clear from the immigration statute, so the advice from USCIS was simply wrong. The only route forward will be to continue with consular processing, unfortunately. That’s good that the I-485 was filed before the VWP entry expired. Now that the I-485 has been denied, however, she will begin to accrue unlawful presence. At the 6 month mark she will be barred from the US for 3 years (after departing) and at the 12 month mark for 10 years. So you need to take immediate action to ensure she isn’t precluded from returning to the US after consular processing. This is a complicated, high-stakes situation, so please get some individualized advice from an attorney who will look at the full background.
Thanks for that detailed answer Greg. I will definitely seek advice from an attorney – I wish I had earlier.
As for your comment about her being barred – I thought this did not apply to children?
Paul, you’re correct that unlawful presence (ULP) does not accrue to minors.
My boyfriend overstayed the ESTA, I recently found out that he was on this permit. He told me that he came and lost his status but this whole time I had thought he got here on a tourist visa, which I had researched and found out it wasn’t hard to change the status. The plan is to get married next year. I am expecting, I am due around February. However, there have been several friends of his that have told him that he won’t be able to change his status even if we got married and that I will have to go to Chile if I really want him to get a green card. What are the chances that I will have to go back to Chile with him? This is what I am hearing and it really makes me nervous, I honestly don’t want my child to be born out of this country. If we got married and applied for a green card what are the chances that he will get it? He was supposed to leave the country on January 1st 2016. Where are you located? Thank you in advance!
Thanks for the well-worded question, and congratulations on the baby! Several points to make here.
First, unless your friends are lawyers (or Board of Immigration Appeals Qualified Representatives), take their advice with a grain of salt. Or a whole bag of salt. Most lawyers don’t know anything about INA Section 245(a) adjustment, so I wouldn’t expect a non-lawyer to be an expert on it.
Second, I would *strongly* advise you guys to work on this sooner rather than later. If he has overstayed ESTA he is already deportable. You should look into legalizing his status ASAP and not wait.
Third, don’t be too hard on him for calling it a “tourist” visa. Most people don’t understand the difference between ESTA and a B-2, although the differences are important as you’re discovering.
Fourth, it is definitely possible that he could be eligible to apply for a green card (called adjustment of status) without first returning to Chile. To determine whether he is eligible we’d have to do a full consultation, since there are a lot of factors that need to be examined. Our lawyers are based in Washington State, but we work with clients online through our secure client website. So our clients are located all over the country, and around the world. Even for our clients who live in Washington State, we typically work with them online since it’s easier for them than driving to our office. If you’d like to schedule a consultation you can do that right here.
We have a friend who got approved Labor Certification on 6.23.16. Can he come to US with his wife under VWP and file I-140 and I-485 in US, or they will need to have this process done while they are waiting in his country.
Thank you very much.
Hi, Ingrid. My focus is on marriage- and family-related immigration rather than employment based matters. In the ESTA statute there is nothing that would allow this, as the only exception is for immediate relatives. But have your friend check with the attorney handling the Labor Cert (the employer should be handling this cost), which are out of my area of expertise. If the employer is doing the cert without an attorney (yikes) then you could ask Mike Allen (firstname.lastname@example.org), who is very experienced in these matters.
i will enter usa on waiver programm if i stay more than the 90 days for example 180 days i can leave the country by air from a major international airport( jfk etc) without having any troubles for example questioning in gate with result to loosing the flight? as for the 3 or 10 year ban i am already informed i am just qurious about the procedure on airport upon departure after the 90 days.
thank you in advange
Customs and Border Protection (CBP) does not screen all individuals on “outbound” flights leaving the US. That means that you could depart without being confronted by CBP. However, CBP also conducts a large number of random out-bound screenings. These can happen literally as you board the plane – CBP will be in the gangway as you load the airplane. I’ve personally encountered this on a significant number of flights. If you are caught at one of these screenings, and have overstayed, there is no question that CBP has the legal authority to detain you, and at that point missing your flight will be the least of your concerns. You would almost certainly be taken to CBP’s on-site facility for interrogation, and depending on the time of day and their staffing could also be detained at an off-site detention center (this happens, for example, when the CBP holding facility is full).
If you are married to a US citizen and present in the US I would strongly encourage you to explore whether you are eligible to adjust status. If you have overstayed ESTA your departure can trigger the 3 or 10-year bar regardless of whether you are caught on the way out of the country. The 3/10-year bars occur by operation of law, regardless of whether CBP makes that determination when you are outbound. Likewise, you can be permanently ineligible to enter the US on ESTA again if you overstayed.
if i leave by land destination to mexico it will be easier?
I can’t advise you – or anyone else – on how to evade US immigration authorities. If you’re worried about getting caught that is a very good sign that you’re going about this the wrong way.
Thanks for this extremely helpful article! I entered the USA on an ESTA less than a fortnight ago and am getting married to my American fiancee this weekend. When I passed through customs I explained I was living in Ireland and that my fiancee and I had intended to return there after we got married and gave the relevant dates of flights.
Since my arrival, however, I have been headhunted for a job in the USA. They want me to apply for a Green card once I get married because it is easier than attempting to get a H1B visa. Naturally, had I known this would be the case I would have sought to enter on a K-1 finace visa so I could apply for adjustment of status.
According to your post above, I would not be eligible to file adjustment of status on an ESTA because the decision to marry was taken long before entering the USA. However, does my subsequent change of circumstance mean it could still be done?
Hi, Alan. Glad you found the article helpful. My mother just left for Ireland this morning, so its on my mind.
Assume that anything you said to CBP on arrival was memorialized in their system and will be available to USCIS at the time of your adjustment interview. As you recount the story, I agree that this sounds like a “change of circumstances” case that would support a legitimate ESTA adjustment. It is conceivable that USCIS would disagree. For example, the USCIS adjudicator could simply not believe you, and find that you intended all along to adjust. You would certainly want to document the fact that you were head-hunted after arrival, as this strongly supports the change-of-circumstance argument.
Feel free to set a consult with us if you’d like definitive advice on this issue. You should definitely see if your would-be employer will cover the cost of legal representation in your adjustment. It will be far, far (far) less expensive for them than sponsoring you on an H1B and later PERM.
I entered the US as a tourist (B2 visa) to visit my US citizen boyfriend and his family last Christmas. I stayed there for a month and went back to Australia (currently a PR). I will be eligible to apply for Australian citizenship next month. If I get my Australian passport, I can now apply for the ESTA/VWP to visit him again.
What would be the best option for us if we are planning on getting married next year?
1) Enter the US as B2/VWP, get married, then file for petition/change of status;
2) Apply for K1 visa; or,
3) Apply for IR1/CR1.
I am looking forward to your response. Thank you in advance.
Hi, Angelica, thanks for the question. Without more facts I certainly can’t offer legal advice to you specifically, but here is some general feedback on the options you list:
1) Enter the US as B2/VWP, get married, then file for petition/change of status. This is almost certainly a very bad idea. A foreign national who enters the use on a B2 or VWP (they are different things) with the intent to seek residency is committing an act of fraud. This can subject the person to a permanent bar from the US. I know that you will see examples of people who have done this, but the scenario is only legitimate where the person decides to adjust status after entering the US.
2) Apply for K1 visa. On the plus side, K1s are marginally faster and easier than IR1 visas. On the down side, they are more expensive and more difficult after you arrive in the US, because you will have to file adjustment of status ($1,070) after arrival. But if speed is your priority, this could be the best option.
3) Apply for IR1/CR1. IR1s historically have taken longer to obtain at the consular stage. Part of this is that you have to deal with the notoriously delayed National Visa Center (K1s don’t). The plus side is that you enter the US as a permanent resident and don’t have to seek adjustment after arrival.
On top of the foregoing considerations for K1s versus CR1s you have to consider the timing of your marriage. If you want a family wedding in the US with everyone present, then a K1 is usually the way to go. If you don’t mind an informal “courthouse” wedding – it will probably need to be in Australia – then you can go the CR1 route. Many of our clients bifurcate their wedding formalities: they first have an informal courthouse wedding to get the legalities complete, then plan a more involved ceremony with their family after all the immigration process is complete.
Hope this is helpful. Remember that there are many more facts that are relevant when it comes to determining whether one of the above routes is possible for you. If you’d like to consult with one of our attorneys you’re welcome to set a webcam consult here.
My nephew is a citizen of Italy. He attended NYU and obtained a Masters Degree and returned to Italy in 2015. He has been a visitor since and is engaged to be married to a US citizen but no date has been set. If he marries after 30 days but before 60 days, would he be eligible for permanent status?
Complimenti! When you say he’s a visitor, do you mean he’s still in the US? As a student he almost certainly entered on something other than ESTA. There is a good chance he is adjustment eligible, but I couldn’t say for sure without doing a full assessment. The 30/60 day rule is only one of many possible ways that fraud is assessed, and fraud itself is just one of the many factors in adjustment cases. If he’d like to meet with one of our attorneys we can easily accommodate that.
Dear Greg McLawsen
My mother a Spanish citizen is now in the US , she got through america with an ESTA VISA ( VWP)
She would love to stay of course only if she can stay legal my question is what are the chances ?
She has an american sister , she has a son with a resident permit and she has a job offer as a elderly caregiver .
Mary, the only time it’s possible to adjust status (apply for a green card) from ESTA is if you have an “immediate relative” sponsor. That is a US citizen who has one of the following relationships to the foreign national:
~ Unmarried child under the age of 21;
~ Parent (if the U.S. citizen is over the age of 21).
Her sister can certainly file an I-130 for her, but this can’t be used for adjustment of status because your mother wouldn’t be an “immediate relative.” (Instead she would have to return to Spain and apply for an immigrant visa following approval of the I-130). If you’re a U.S. citizen (over 21 and living in the U.S.) then you might be eligible to sponsor your mother for adjustment of status. Lastly – and I’m sure you know this – it’s critical she not accept any offer of employment if she is here on ESTA. She must first acquire formal work authorization.
Thank you very much for your response !
No problem – that’s why we’re here!
Dear Sir/Madame, I am a British citizen, my wife and I got married last summer in the USA while on vacation then left the country. She has now returned to the USA to work and look after family while I work here in the UK. I would like to join her in the USA and was wondering what would be the best option? would an adjustment of states under the visa waiver program or the K3 non-immigrant visa be best in terms of spending less time apart and securing my green card?
Hi, Adam – great question, we see this scenario often. Here are some critical points:
(1) One cannot enter the U.S. on ESTA or a tourist visa with the intention of seeking adjustment of status. Doing so is considered an act of fraud under the immigration statute. The person may be turned away at the point of entry, can even be deported, and subjected to a lifetime fraud ban. Adjustment from ESTA is available only if the decision is made after arrival.
(2) K-3s are rarely a successfully strategy because of processing rules put into place by the Department of State. A K-3 is pursued at the same time as an immigrant visa (permanent “green card” visa), and typically the K-3 will not be granted prior to the immigrant visa. So for that reason we usually discourage K-3s as a waste of money.
(3) In the vast majority of cases where a foreign spouse is abroad, the appropriate course of action is an I-130 filed by the U.S. spouse, followed by consular processing (at the London consulate in the case of someone working in the UK). To secure the visa as soon as possible, the primary action in the parties’ control is to get the I-130 filed as soon as possible, and to do it right the first time.
Please help me. We just accessed my husband’s I-94 form online to sum it with our application. He has been here 91 days but we got married before the 90th day. However, the I-94 is incorrect and doesn’t show his latest arrival which was in December. it shows it as October…. so if we submit this they will think we didn’t get married within the 90 days…. He has the flight confirmations and the correct stamp from US Border in his passport. what should we do? Thank you so much for your help.
Hi, Nicholena. Corrections to the I-94 may be requested on the Customs and Border Protection website (the one you used to access the I-94). For spouses of U.S. citizens, however, they can marry and apply for adjustment of status outside the 90-day ESTA window (subject to the restrictions we discuss in the article above).
Interesting article.So to sum up all The US citizen would need to do if they got married is file the AOS (I-485) for the spouse entering on an esta?
Well, there’s a bit more to it than just that. For example, a “one-step” adjustment requires both an I-130 petition and I-485 adjustment application.
I have looked at both these forms .Some questions look as though they cant be answered by the fiance.So the USC petitions the I-130 and the Non USC the I-485?And marriage and forms all before the 90 days. Thank you Ingrid
Thank you for your cogent summary. I have a follow-up questions to the statement “Realistically this means that if someone applies for adjustment before hitting the 90-day ESTA expiration they are likely going to be subjected to strict examination of their marriage. These are cases where you want to do an outstanding job documenting the bona fides of the relationship.”
1) The non-immigrant has now completed 60 days on her ESTA and desires to get married the next day. The USC and she open joint financial accounts; she is named in the USC’s work health insurance; on the USC’s child’s school records; home utilities are updated with her name, etc. Applies for SSN and State Driver’s license. Would the AOS still have significantly more scrutiny?
2) Assume the non-immigrant overstays her ESTA and the couple marries on the 91st day. Same situation as above regarding addition of the non-immigrant to various legal documents to avoid appearance of a sham marriage or prior intent. Is the filing of the AOS (I-485) while the non-immigrant is in an overstay status LESS problematic than the overstay itself?
Thank you –
John, sorry for the late response – your question was lost in a bunch of spam comments.
Regarding question (1) – yes, a marriage in the 60-90 day mark will always receive heightened scrutiny from USCIS. The types of facts you suggest do help prove that the marriage was entered in good faith. But the question is not just good faith, rather whether the marriage was pre-conceived before the person entered on ESTA. In fact, if the person opened bank accounts, etc., shortly after entering the US, this tends to prove – rather than disprove – immigrant intent.
Regarding question (2) – that’s a very fact-specific question and I’d want to know more before offering an opinion. (These public comments aren’t a good space for such details). The core question here is the subjective intent of the foreign national before entering the US. For clients of mine who had no pre-conceived intent I’ve had no problem filing in the 60-90 day window.
I will like to know the answer to question 2 too please.
How does John’s question 2 apply should there be no pre-conceived intent? Will there be a problem should the filing be after the 60-90 day window? on the 91st day or even after?
Hi, Cheryl: Remember that once an ESTA traveler is in overstay s/he is immediately considered deportable. And ESTA entrants are subject to expedited deportation proceedings where normal removal defenses do not apply. Filing in the 60-90 window does not raise a presumption of fraud. But ultimately the issue is what the individual’s actual intention was. If the person entered the US intending to seek residency that is unlawful, and the adjustment application can be denied (and a permanent fraud inadmissibility finding made).