Marriage on an ESTA

[azora 0]

I recently went to visit my girlfriend for the second time this year, only this time for 3 months we are currently nearing the end of the first month. I asked her to marry me and she said yes, (I'm from england, she is a us citizen).

I know your not meant to get married on an ESTA but after that first month we knew we couldn't be apart, it was a spur of the moment sort of thing. I have to go back to the UK in 4 months time (for work) but I would love if you lot could tell me if im going to have to go back to the UK after my 90 days or I can get myself and AOS and stay for a further two months, at that time I would fly back to the UK and return when everything is processed.

Is this possible / the best approach for me and my wife right now?

Whats the process like, what forms are needed?

How much dose the process cost?

Edited February 10, 2013 by azora

[speedwell 224]

I recently went to visit my girlfriend for the second time this year, only this time for 3 months we are currently nearing the end of the first month. I asked her to marry me and she said yes, (I'm from england, she is a us citizen).

I know your not meant to get married on an ESTA but after that first month we knew we couldn't be apart, it was a spur of the moment sort of thing. I have to go back to the UK in 4 months time (for work) but I would love if you lot could tell me if im going to have to go back to the UK after my 90 days or I can get myself and AOS and stay for a further two months, at that time I would fly back to the UK and return when everything is processed.

Is this possible / the best approach for me and my wife right now?

Whats the process like, what forms are needed?

How much dose the process cost?

Getting married on an ESTA is fine, but do not overstay your leaving time. Otherwise you can be charged with visa fraud because they can say, "What, you said you were just coming for a visit, not to stay!". People do do this sometimes, but it is against the law and those people are lucky. While your I-130 is processing, you can visit again under the VWP, but there are a few rules of thumb to follow. Bottom line, just don't overstay.

My UK husband and I married in Scotland and I had to come home from my business trip and file the I-130 in the US, but the same rules applied to us when he visited me after I submitted the forms. He got a stamp for 90 days, but we had carefully calculated a return flight for 85 days so as to avoid overstaying. He went home on time. The rule of thumb is it's best to stay out of the US for at least as long as you stayed in, so unless his green card is processed before then (and it might be), the soonest he can come again is in May. I will be visiting him before then, though.

I strongly recommend you do things the way we did them if you to want to reside in the US. Quite frankly, we would rather live in the UK, but those rules the UK passed last year scuttled our plans (he doesn't make enough or live where he has a prospect of getting a better job) and so we are doing the US thing.

Edited February 10, 2013 by speedwell

[azora 0]

Am I able to apply for an extension of stay while the application processes? I've heard that others have done that before.

[speedwell 224]

Am I able to apply for an extension of stay while the application processes? I've heard that others have done that before.

You heard wrong. That is exactly the thing I was talking about. Don't do it. Trust me, if it were legally possible at ALL, we would have done it.

Edited February 10, 2013 by speedwell

[Penguin_ie 5,994]

You cannot apply for an extrension on the visa waiver program, that is only for tourist visas (and even then, rarely granted).

You have two options, the first one seems to suit your plans better:

- File for a CR-1 spousal visa now. Leave after the 90 days on the visa waiver is up, do what you need to do in the UK, visit on the visa waiver through the progress. Immigrate when you get the spousal visa in 7+ months.

- As you didn't plan to get married and stay, you CAN file AOS, but you could not leave the country until it's done. DO NOT choose this option if you absolutely must leave for the work thing in England, your AOS would be abandoned, you'd need to file for a new CR-1 spousal visa (thus loose time), and you'd be unlikely to be let back in to visit during the process.

[speedwell 224]

You cannot apply for an extrension on the visa waiver program, that is only for tourist visas (and even then, rarely granted).

You have two options, the first one seems to suit your plans better:

- File for a CR-1 spousal visa now. Leave after the 90 days on the visa waiver is up, do what you need to do in the UK, visit on the visa waiver through the progress. Immigrate when you get the spousal visa in 7+ months.

- As you didn't plan to get married and stay, you CAN file AOS, but you could not leave the country until it's done. DO NOT choose this option if you absolutely must leave for the work thing in England, your AOS would be abandoned, you'd need to file for a new CR-1 spousal visa (thus loose time), and you'd be unlikely to be let back in to visit during the process.

Penguin, I've been hearing that the AOS process is too risky, even if the beneficiary really did not enter with the intention of staying, because it is extremely difficult to prove so and the burden of proof is on the beneficiary. Therefore I'm telling people not to risk it because the consequences of a ban or removal or overstay are just too disproportionate. Your thoughts?

[azora 0]

- As you didn't plan to get married and stay, you CAN file AOS, but you could not leave the country until it's done. DO NOT choose this option if you absolutely must leave for the work thing in England, your AOS would be abandoned, you'd need to file for a new CR-1 spousal visa (thus loose time), and you'd be unlikely to be let back in to visit during the process.

Thankyou for your reply, Say I was granted an AOS but still left after 4 months, applied for a new CR-1 and only planned to re-enter when the application was complete, would this be ok? Because we are talking about it right now, once my affairs are sorted in england, she could fly over here and stay with me in england until it is processed, then we can fly back to the USA.

[Penguin_ie 5,994]

Usually, it is ok, especially in cases like this where the OP clearly has ties to home (work expects him back). But yes, there is a risk of loosing time and money, plus you cannot appeal. My suggestion usually is that if in doubt, file for a visa, but that AOS is an option.

[Clemjam 8]

I got married whilst on an ESTA in June 2010, and left within the 90 day limit.

I had no problems though the following time we visited the US, the customs asked me a lot of questions about my previous stay, hard to answer after travelling for 18 hrs

I wouldn't risk staying over the 90 day limit if I were you!

[Penguin_ie 5,994]

Thankyou for your reply, Say I was granted an AOS but still left after 4 months, applied for a new CR-1 and only planned to re-enter when the application was complete, would this be ok? Because we are talking about it right now, once my affairs are sorted in england, she could fly over here and stay with me in england until it is processed, then we can fly back to the USA.

It is extremely unlikely the AOS process would be completed after 4 months and if it is not, it is considered abandoned (money and time lost). What you *could* try (and this may not work) is a few days before the 90 days is up, go back to England for a week, then come back. If you have not been in the US a lot other than those recent 90 days, they *may* give you another 90 days, or at least a few weeks, and even if not, a denial will not affect the CR-1 spousal process.

[Clemjam 8]

I think they would get very suspicious though...

I had been to the States 3 x 2 weeks and 1 x 85 days in 2010 and they asked me lots of questions when we last entered in 2011.

[ValerieA 350]

It certainly is not illegal to AOS from the VWP, or they simply would not allow people to do it. However, it does take 3-5 months, so if you absolutely have to go back in 4 months, it really isn't an option. As Penguin stated, you would be considered to have abandoned your AOS process the moment you left the country - unless you had received your AP, which usually takes about 3 months, but probably shouldn't be counted on.

Just to clear up some misinformation up there - it is not up to the beneficiary to prove they had no intent. It is up to USCIS to prove they DID. Even at that, intent alone can not be used as a reason to deny AOS.

OP, if you are interested in the AOS process, you may want to ask the mods to move this thread to the AOS forum, using the report button.

[speedwell 224]

Just to clear up some misinformation up there - it is not up to the beneficiary to prove they had no intent. It is up to USCIS to prove they DID. Even at that, intent alone can not be used as a reason to deny AOS.

It's not misinformation. People are presumed by Immigration to be intending immigrants unless they can satisfy an immigration official otherwise. This is written into policy documentation.

[ValerieA 350]

It's not misinformation. People are presumed by Immigration to be intending immigrants unless they can satisfy an immigration official otherwise. This is written into policy documentation.

Only when actually crossing the border. When dealing with USCIS - no.

[speedwell 224]

Only when actually crossing the border. When dealing with USCIS - no.

I see what you're saying. Fair enough. I'll double-check my source documents.