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I Came To The U.S. On ESTA/VWP – Can I Adjust Status?

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.

Background

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.

Strategic considerations

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.

I came to the U.S. on ESTA/VWP – can I adjust status?
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Greg McLawsen

I’m proud to be the founder of Sound Immigration. My job is to work behind the scenes to ensure our clients have an outstanding experience at our firm. I’m passionate about reinventing the practice of law to make it work better for those we serve. I work hard to identify the best available technology to make our firm convenient for clients. I look to other industries, like real estate and the restaurant business, to learn about practice that will help serve our clients better.

This Post Has 96 Comments
  1. Hello,
    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

    1. 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.

  2. Hi There,
    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?

    br
    Fadi

    1. 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.

      1. 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?
        Br
        Fadi

  3. Hi
    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!

  4. 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?

    1. 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.

  5. Hey greg,
    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.

  6. Hi Greg,

    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 ?

    Thankyou.

    1. 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.

  7. 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.

    help please…

    1. 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.

    2. 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).

      Good luck

  8. Hi Greg,

    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?

    1. 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.

  9. 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.

    Trevor

    1. 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.

  10. Hi Gregg
    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?
    Thank you.

    1. 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.

  11. Hi Greg,

    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 ?

    Thanks !

    1. 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.

  12. Hi Greg-
    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?

  13. 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?

    Thanks

  14. Hi Greg,

    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?

    Thanks, Dave

    1. 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.

  15. 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,

    Eric.

    1. 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.

  16. 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?

    Best regards

    1. 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.

  17. Hi Greg,

    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

    1. 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.

  18. Dear Greg,

    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.

    Sincerely,
    Zoey

    1. 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.

  19. Hello Greg,

    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!
    Josh

    1. 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.

  20. 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?

    1. 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.

  21. Hi Greg,

    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 🙂

    1. 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.

      1. Hi Greg,

        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?

        1. 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.

  22. Dear Greg,
    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?
    Thank you!
    Nicole

    1. 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.

  23. 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!

    1. 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.

  24. Hello Greg!
    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
    Thank you
    Best regards

    1. 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.

  25. HI Greg,
    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.
    Best regards,

    1. 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.

      1. Dear Greg,
        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.
        Best regards
        Max

        1. 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.

  26. 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

    1. 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.

  27. Hello Greg,
    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.
    Heathyr

    1. 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.

  28. 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!!

    1. 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.

      1. Hello.

        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?

        1. 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.

  29. Hi Greg
    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

    1. 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.

      1. 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?

  30. Hello Greg,

    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!

    1. 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.

  31. Hello,

    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.

    1. 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 (mike@advenienz.com), who is very experienced in these matters.

  32. hello sir

    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

    1. 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.

        1. 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.

  33. Hi Greg,

    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?

    Thanks,
    Alan

    1. 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.

  34. Hello Greg,

    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.

    1. 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.

  35. 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?
    Sincerely
    Armando Parisi

    1. 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.

  36. 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 .

    Thank you

    Kind regards
    M. Helms

    1. 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:
      ~ Spouse;
      ~ 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.

  37. 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?

    1. 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.

  38. 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.

    1. 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).

  39. 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?

      1. 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

  40. Greg –

    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 –

    1. 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.

      1. Hi Greg

        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?

        1. 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).

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