[Immigration Law] Guide to Adjustment of Status and Obtaining a Green Card after Entering on Visa Waiver (ESTA) as the Spouse of a U.S. Citizen

The Electronic System for Travel Authorization (ESTA) is an application system used by citizens of Visa Waiver Program (VWP) countries to travel to the U.S. without a visa. Once approved, ESTA is valid for two years or until the expiration of the traveler's passport, whichever comes first. ESTA applies only to citizens of VWP countries and is required for air or sea travel to the U.S. With ESTA, citizens of these countries can visit the U.S. for business, tourism, or transit purposes for up to 90 days without obtaining a visa.

Entering the U.S. through the Visa Waiver Program (ESTA) is one of the easiest ways to visit, but many individuals face confusion and complexity when it comes to adjusting status and applying for a green card after marrying a U.S. citizen. Generally, individuals entering through ESTA are subject to strict limitations on extending their stay, changing status, or applying for permanent residency. However, an exception exists for immediate relatives of U.S. citizens, allowing them to adjust their status and apply for a green card even after entering under the Visa Waiver Program. This column will address the exception and provide guidance on navigating this process under the most recent immigration laws.

1. Understanding the Visa Waiver Program (ESTA)

The Visa Waiver Program (ESTA) allows travelers to visit the U.S. for up to 90 days for business or tourism without a visa. Those entering under this program are generally not allowed to change their status, extend their stay, or apply for a green card while in the U.S. Additionally, travelers under ESTA waive their right to challenge their removal from the U.S. if they violate immigration laws, except in cases of asylum. This means that violators can be deported without the chance to defend themselves.

1. Immediate Relative Exception: Applying for a Green Card as a U.S. Citizen’s Spouse

An important exception exists for Visa Waiver Program entrants: immediate relatives of U.S. citizens (spouses, unmarried children under 21, and parents) can apply for a green card from within the U.S. despite the general restrictions. Policy Memorandum PM-602-0093, issued in 2013, permits immediate relatives of U.S. citizens to file adjustment of status applications even if they overstayed their visa waiver period.

1. The 60-Day Rule: Addressing Preconceived Intent

In the past, ESTA entrants applying for a green card were often suspected of having preconceived immigration intent. To avoid this suspicion, applicants were advised to wait 90 days after entry before applying for a green card. However, in July 2021, the Biden administration relaxed this rule, introducing new guidance that a green card application submitted after 60 days is not considered fraudulent. Therefore, applicants who wait at least 60 days after entering the U.S. under ESTA before applying for a green card are less likely to be accused of having preconceived intent.

1. Green Card Application Process and Key Considerations

When applying for a green card through marriage to a U.S. citizen, the following steps are essential:

• Filing the I-130 Petition: The U.S. citizen spouse must file an I-130 petition on behalf of the foreign spouse, which serves to prove the authenticity of the marriage.

• Submitting the I-485 Application for Adjustment of Status: The spouse who entered under ESTA can submit Form I-485 to adjust their status. During this process, the applicant will be screened for issues such as criminal history, immigration fraud, or national security concerns. Form I-864 Affidavit of Support must also be filed to prove that the petitioner can financially support the beneficiary. This affidavit is typically submitted with the I-485 application, though it may also be required during the USCIS interview.

  Applicants should prepare thoroughly for the USCIS interview, which may include questions about their intentions upon entering the U.S. It's essential to provide complete documentation to demonstrate the validity of the marriage and avoid removal proceedings during the application process. Applicants with past immigration violations or criminal records should be aware that their green card applications may be denied.

1. The Impact of Removal Proceedings

If an individual enters the U.S. under ESTA, stays beyond 90 days, and is placed in removal proceedings, it can be challenging to obtain a green card through marriage to a U.S. citizen. Since ESTA entrants waive their right to challenge removal, relief through marriage may be limited. Therefore, it is crucial to file for adjustment of status before removal proceedings begin, and to seek legal advice from an immigration attorney to navigate the process securely.

Adjusting status and applying for a green card after entering the U.S. under the Visa Waiver Program and marrying a U.S. citizen requires careful legal navigation. Preconceived intent, the 60-day rule, and previous immigration violations must be carefully considered. Understanding the immediate relative exception and consulting an immigration law expert can significantly enhance your chances of successfully obtaining a green card.

This column provides general legal information on immigration law and is not a substitute for individualized legal advice. The laws and procedures applicable to your situation may differ, and we are not responsible for any legal outcomes based on the information provided in this column. Please consult an attorney for specific legal guidance.