Change of Status for spouse on ESTA visa

[jordanross7 0]

I legally married my wife, a British national, here in the US on 5/2/2011. She is visiting again on ESTA visa along with my 5 month old son, who is also a British national. My quesiton is, can I file for Change of Status? If yes, then what is the procedure?

Thanks

Edited October 2, 2012 by jordanross7

[Hypnos 6,576]

You can, although entering the US on a nonimmigrant visa with the intent to remain would constitute visa fraud.

[Penguin_ie 5,986]

You posted this in the Bringing Family of Greencard Holders forum. Are you a US citizen or a greencard holder?

If US citizen, and she had no intention of staying when she came in then yes she can stay and Adjust Status. If you are a greencard holder then no, she cannot, as there is a 2+ year waitinglist to get a visa.

[jordanross7 0]

You posted this in the Bringing Family of Greencard Holders forum. Are you a US citizen or a greencard holder?

If US citizen, and she had no intention of staying when she came in then yes she can stay and Adjust Status. If you are a greencard holder then no, she cannot, as there is a 2+ year waitinglist to get a visa.

Oh I'm sorry. I didn't realize it was for Greencard Holders. But since I've already posted on here, can you tell me what forms to fill out? I've got the following forms:

G-325A

G-1145

I-129F

I-485

I-864

[Penguin_ie 5,986]

** Moving from LPR forum to AOS from Tourist visa ***

Our Guides tell you all the docs you need and the process: http://www.visajourney.com/content/i130guide2

[hmh33 117]

With immigration it's important to be clear and use correct terminology (even if it takes you a while to learn.)

Please confirm that you are a US citizen.

Is your wife a British citizen, or a British national? There's a difference. If she was born and raised in the United Kingdom, she is probably a British citizen. This doesn't matter too much for the adjustment of status procedure, but it's best to use the correct term.

There is no such thing as an ESTA visa. Most British citizens (and those of several other countries) are eligible to use the Visa Waiver Program (commonly abbreviated online as VWP, though that isn't an official acronym). ESTA is an electronic authorization that is required in order to use the VWP. The VWP waives the requirement for a visa, so somebody using the VWP is explicitly not using a visa. This has some important consequences in terms of rights to judicial review etc. When you come to fill in the form entries asking about your wife's immigration status, is is "Visa Waiver (Tourist)". She does not have an I-94 number (I-94 forms are issued to nonimmigrant aliens arriving with visas). When asked for the I-94 number, it is "none (visa waiver)".

The forms you need to adjust* your wife's status to permanent resident are:

I-130 (not I-129F, since you are already married)

I-485

I-864 or I-864EZ

I-693 (completed by a civil surgeon as part of a medical examination)

I-765 (optional but useful and free to file)

I-131 (ditto)

G-325a x2

G-1145

See this guide: http://www.visajourney.com/content/i130guide2

The question of intent may come up during your research and is a subtle topic. Basically, a foreigner is not allowed to enter the US under nonimmigrant (tourist) status with the preconceived specific plan of staying on in the US on that trip and adjusting status to permanent resident. However, if a nonimmigrant foreigner is already in the US and decides that, contrary to her initial intention, she would now actually like to stay and adjust status, then that is permitted and is indeed the whole reason for the existence of the adjustment-of-status procedure. The question of intent almost never comes up during the adjustment of status interview; it's mainly an issue during that initial entry to the US. So if she's here now and nothing unusual came up during her conversation with Customs & Border Patrol at the time she entered the US, then it should be fine for her to adjust status. In the mean time, she should not leave the US until she has "Advance Parole" (a temporary travel permission card) or her green card, since if she left it would then be illegal for her to re-enter with the intention of staying and adjusting status. Read that a few times until it makes sense!

Have you lived in the US most of your life? If so, your son should automatically be a US citizen. You should apply for a US passport for him, because legally he is required to use it when entering the United States - yes, even if he is 5 months old. He is probably a dual citizen of the UK and the US - lucky him!

* Adjustment of status is a specific term implying the transition from nonimmigrant to immigrant (permanent resident) status. It is different from change of status which is a transition from one nonimmigrant status to another nonimmigrant status.