I entered on ESTA and am getting married. Can I get a green card in the USA?

Entering the United States under the Electronic System for Travel Authorization (ESTA) allows individuals from Visa Waiver Program (VWP) countries to visit for tourism or business for up to 90 days without obtaining a visa. However, this convenience comes with specific conditions and limitations. One common query is whether someone who entered the U.S. on ESTA and plans to marry a U.S. citizen or permanent resident can adjust their status while remaining in the country.

The Purpose and Function of ESTA

It’s crucial to understand the purpose and function of ESTA. ESTA is an automated system used to determine the eligibility of visitors to travel to the U.S. under the VWP. While it facilitates short-term visits, it explicitly prohibits the use of this entry for long-term residency or immediate immigration intentions, such as remaining in the U.S. permanently.

Adjusting Status After Marriage

If you’re in the U.S. on ESTA and marry a U.S. citizen, you may be eligible to apply for Adjustment of Status to become a lawful permanent resident, i.e., obtain a green card. However, there are significant considerations to be mindful of. The intent at the time of entry is paramount. U.S. Citizenship and Immigration Services (USCIS) scrutinizes entries made under ESTA to ensure that individuals did not enter the U.S. with the preconceived intention of bypassing standard visa procedures to marry and adjust their status.

Validity of the Marriage

Marriage to a U.S. citizen can be a valid basis for adjusting status. Nevertheless, the marriage must be bona fide, meaning it should be genuine and not entered into solely for immigration benefits. If USCIS suspects or determines that the marriage is not in good faith, it can cause a denial of the application and potential removal proceedings.

Challenges of Overstay

A key challenge for ESTA entrants is the potential overstay. Remaining in the U.S. beyond the 90-day ESTA period can significantly complicate the adjustment of status process. An overstay can render an individual ineligible for AOS and lead to removal from the U.S. However, in certain circumstances, such as being married to a U.S. citizen, waivers or exceptions may apply, allowing the adjustment process to proceed despite the overstay.

Importance of Documentation

Recent changes in immigration policies and heightened scrutiny mean it is more important than ever to ensure compliance with U.S. immigration laws. Keeping thorough documentation of your relationship, such as joint financial records, photographs, and affidavits from friends and family, can strengthen your case.

Seeking Legal Guidance

Given the complexities involved, seeking guidance from an experienced immigration attorney is invaluable. Legal counsel can help you through the intricate process, anticipate potential pitfalls, and provide tailored advice based on the latest legal standards and policies.

Our Commitment at Sverdloff Law Group

At Sverdloff Law Group, we understand the unique challenges faced by those looking to adjust their status after entering on ESTA. Our team is committed to providing empathetic, detailed, and professional support to help you achieve your immigration goals. Contact us for a consultation to learn about your options and receive personalized assistance through this complex legal journey.