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Can Someone Who Entered the U.S. on the Visa Waiver Program Using ESTA Adjust Their Status?

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The Visa Waiver Program (VWP) allows citizens from some countries to visit the U.S. for up to 90 days. This is usually for tourism or business and considered short term.

Travelers under the Electronic System for Travel Authorization (ESTA) can use this program, but it comes with specific restrictions. One of these restrictions limits their stay and prevents changing their status in the U.S.

In this blog post, we’ll explore the following:

  • Whether a person who enters the United States on the Visa Waiver Program can adjust their status to lawful permanent resident (LPR) status through marriage.

  • We’ll break down the differences between marrying a U.S. citizen and a lawful permanent resident (LPR)

  • Discuss alternative options if adjustment of status is not possible before the 90-day period.

 

Adjustment of Status After Entering on ESTA 

Generally, travelers who enter the U.S. on ESTA waive their right to: 

 • Extend their stay beyond the 90 days of entry.

• Adjust status (apply for a green card) within the U.S. 

• Contest removal if they overstay or violate the terms of their entry. 

 One important exception exists: immediate relatives of U.S. citizens can change their status. This is true even if they entered under the Visa Waiver Program. 

Adjustment of Status After Marrying a U.S. Citizen 

One of the primary exceptions to the adjustment restriction is when a person on ESTA marries a U.S. citizen. They can apply for adjustment with their immigrant status to a lawful permanent resident without leaving the U.S. This is because spouses of U.S. citizens are classified as immediate relatives, and immediate relatives are exempt from many of the restrictions that apply to others under immigration law. 

 Here’s what happens when a VWP entrant marries a U.S. citizen: 

• Eligibility for Adjustment: Spouses of U.S. citizens can change their status to a green card holder. They can do this while staying in the U.S., even if they entered on ESTA. 

• Overstaying on ESTA: If someone overstays their ESTA but marries a U.S. citizen, they may still adjust their status. Immigration law does not punish immediate relatives of U.S. citizens. This includes spouses, parents, and unmarried children under 21. Authorities will not penalize them for overstaying their visa while they seek adjustment of status. 

• Filing Process: After getting married, the U.S. citizen spouse can file Form I-130. This is the Petition for Alien Relative.

At the same time, the foreign national can file Form I-485. This is the Application to Register Permanent Residence or Adjust Status. Consulting with an experienced immigration attorney is recommended during this part of the immigration journey.

The U.S. citizen spouse can stay in the U.S. while waiting for the decision. If needed, they can apply for advance parole to travel during this time. 

Adjustment of Status After Marrying a Lawful Permanent Resident 

Marrying a lawful permanent resident (LPR) is a different situation, and the rules are stricter. If you marry an LPR while on ESTA, you are not automatically eligible to adjust status within the U.S. Here are the key points: 

• Family Preference System: Spouses of LPRs are in the F2A category. This means that people do not consider them immediate relatives. They cannot change their status while in the U.S. unless a visa number is available for their category. 

• No Overstay Forgiveness: Unlike immediate relatives of U.S. citizens, spouses of LPRs are subject to overstay penalties. If the person on ESTA overstays and marries an LPR, they will not be able to adjust their status in the U.S. and may need to depart to process their green card abroad through consular processing. 

 

What If You Can’t Adjust Status in the U.S.? 

If you can’t change your status in the U.S., you have another option: consular processing.

This situation often applies if you are married to a lawful permanent resident and requires you to apply for a green card from outside the U.S. 

 

Consular Processing 

  • After submitting the I-130 petition, the foreign spouse needs to apply for their green card. They must do this at a U.S. consulate in their home country. 

  • They must go to an interview at the U.S. consulate. If officials approve them, they will get an immigrant visa. This visa lets them enter the U.S. as a lawful permanent resident. 

 

Waivers for Overstay or Unlawful Presence 

  • If you stay in the U.S. on an ESTA for more than 180 days, you may face a 3-year ban on reentry.

  • If you overstay for more than one year, the ban could last 10 years. 

  • You can apply for a waiver of inadmissibility by filing Form I-601A. You must show that your U.S. citizen or LPR spouse would face extreme hardship if you cannot reenter the country. This waiver would allow you to return to the U.S. after completing consular processing. 

 

Practical Considerations 

• Intent and Timing: Entering the U.S. on ESTA with the intent to marry and adjust status could be seen as visa fraud. Immigration officials may scrutinize cases where the marriage occurred shortly after entry. Showing that you did not enter the U.S. with the preconceived intention of adjusting status is important. 

• Legal Help: Adjusting your status after entering on ESTA can be complicated. Consulting with an immigration lawyer can help you understand your choices. This will prevent issues like overstaying your visa. It also helps you avoid trying to change your status without permission.

Conclusion 

 

People who enter the U.S. on ESTA usually give up their right to change their status. However, there are important exceptions for immediate relatives of U.S. citizens. If you marry a U.S. citizen, you can usually adjust your status in the U.S. This is true even if you came in on the Visa Waiver Program.

If you marry a lawful permanent resident, you will probably need to go through consular processing outside the U.S. This is especially true if you overstay your ESTA. Knowing your options and talking to an immigration lawyer is important. This helps you take the right steps and avoid legal issues. 

Learn more about related topics, such as K1 vs Greencard or Proxy Marriages by exploring our blog.

For further assistance or to schedule a consultation, please contact SG Legal Group today. We can help navigate your options for adjusting status and ensure that your case is handled with care and expertise.

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