Marriage on an ESTA

[ValerieA 350]

Let's see if I can manage to post a link to where I have linked the Field Manual re: this before...we have had a lot of discussions re: this in the AOS section.

My link

ETA: Yay! It worked! I am not as technologically illiterate as I thought!

Edited February 10, 2013 by ValerieA

[LilyR 7]

Be sure you have filed paperwork before the end of your 90 days. If you just overstay your 90 day vwp visit you *can* be deported. (I speak from experience.)

[Harpa Timsah 13,260]

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.

You are confused about the process. You are not "granted an AOS" right when you apply. You apply for it and wait. During the time you are waiting, if you leave the country, you will abandon your case formally and your nearly $1500 will be wasted - AOS denied for abandonment.

Basically if you must go home in 4 months, then AOS is not for you. There is no way to extend your time for another two months without committing to being here for more than that without leaving.

Look into the CR-1 process and good luck.

[Xanax 349]

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.

That's not exactly true.

OP you have 2 options:

1) Stay, marry and adjust your status now to a legal permanent resident. You will not be able to leave the country while the application is in process before you at least have advanced parole (it is better to wait for your green card though).

2) Marry now , return to the UK and then apply for the Cr-1 visa. This visa will take around 8-10 months to be approved. In this time you can still use the VWP to visit your husband/wife.

** Your plan to get an extension on the VWP won't work, you can't get one and you won't be granted your AOS to legal permanent resident within 4 months (well it is unlikely) so you have to decide if you can stay out of the UK for 3-8 months while you wait for AOS or if you need to go back to the UK. If you MUST return, the CR-1 visa is the way to go, if you do not have to return and you can stay out of the UK while your AOS is processing then adjustment of status would be the way to go.

Edited February 11, 2013 by Xanax

[speedwell 224]

That's not exactly true.

I'm sorry, it IS exactly true. The fact that people get away with it does not make it advisable or without significant risk.

Edited February 11, 2013 by speedwell

[Xanax 349]

I'm sorry, it IS exactly true. The fact that people get away with it does not make it advisable or without significant risk.

No, as you have already been told in this thread, adjusting from the VWP is perfectly legal or people wouldn't be able to do it and similarly as someone else pointed out, the burden of proof is in the IO if they want to prove the applicant had the intent to immigrate from their non-immigrant visa.

I assure you this is correct as I consulted with an immigration attorney before we applied for AOS and subsequently discussed just this with our IO at our interview (you can read about it in our AOS review )

[speedwell 224]

No, as you have already been told in this thread, adjusting from the VWP is perfectly legal or people wouldn't be able to do it and similarly as someone else pointed out, the burden of proof is in the IO if they want to prove the applicant had the intent to immigrate from their non-immigrant visa.

I assure you this is correct as I consulted with an immigration attorney before we applied for AOS and subsequently discussed just this with our IO at our interview (you can read about it in our AOS review )

No, as has already been pointed out by me and others here and elsewhere, the AOS from VWP process comes with a high risk of being viewed as having entered the country as a visitor when the real intent is to stay. This is illegal visa fraud on its face and subjects the immigrant to suspicion and scrutiny.

If you felt secure accepting this risk for yourself, I am happy it worked out positively for you, but I am not in any way going to advise people to accept a significant risk that I myself would not take.

[NickUSMC 3]

No, as you have already been told in this thread, adjusting from the VWP is perfectly legal or people wouldn't be able to do it and similarly as someone else pointed out, the burden of proof is in the IO if they want to prove the applicant had the intent to immigrate from their non-immigrant visa.

I assure you this is correct as I consulted with an immigration attorney before we applied for AOS and subsequently discussed just this with our IO at our interview (you can read about it in our AOS review )

My laywer told me that if you get married on a VWP you cannot apply for Adjustment of Status. Simply because you have no visa. Period.

[Xanax 349]

No, as has already been pointed out by me and others here and elsewhere, the AOS from VWP process comes with a high risk of being viewed as having entered the country as a visitor when the real intent is to stay. This is illegal visa fraud on its face and subjects the immigrant to suspicion and scrutiny.

If you felt secure accepting this risk for yourself, I am happy it worked out positively for you, but I am not in any way going to advise people to accept a significant risk that I myself would not take.

If you check the denials rates you will find they are low for those adjusting from the VWP.

Once you have been admitted to the US you have proven you have no intent to stay or you would not have been admitted, make sense? That is why some people are turned around at CBP because they are believed to have intent to stay. Once over that line, you have "proven" you did not intend to stay.

You will find much fear mongering here about VWP AOS but it is unjustified, there is relatively no risk if you had no intention to stay and the BURDEN of proof is on the IO not the beneficiary or the petitioner. Actually intent alone is NOT enough to deny AOS so if someone skirts the systems, gets in and applies for AOS they will very likely get it as long as they don't say "yes I had intent to immigrate. I will link some of the informative and correct responses in this thread!

See example and advice here:

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.

And here:

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.

If you want to discuss this further, I suggest making a new topic and some of the senior members here can point you to the countless accounts (my own included) of AOS from the VWP and also direct you to any legal/ or USCIS informative information. I really hope these other informative answers have cleared this situation up a little bit as AOS from the VWP and tourist visa is often misunderstood

My laywer told me that if you get married on a VWP you cannot apply for Adjustment of Status. Simply because you have no visa. Period.

Wrong.

*** I will stop derailing OP's thread now as they have their options clearly spelled out by numerous well informed members. Good luck OP with whatever avenue you choose. If you have particular questions about AOS from the VWP, we recently completed the process and I would be happy to give you my experiences!

Edited February 11, 2013 by Xanax

[speedwell 224]

If you check the denials rates you will find they are low for those adjusting from the VWP.

Once you have been admitted to the US you have proven you have no intent to stay or you would not have been admitted, make sense?

No. I can't think of any case in which the opinion of the border guard overruled the ruling of an adjudicator; perhaps your well-informed colleagues can name some cases in which it did.

But I have made my point and I also wish everyone well who takes the risk.

[Xanax 349]

No. I can't think of any case in which the opinion of the border guard overruled the ruling of an adjudicator; perhaps your well-informed colleagues can name some cases in which it did.

But I have made my point and I also wish everyone well who takes the risk.

Generally intent is never even discussed as I stated BECAUSE you have proved you had NO intent when you entered or you wouldn't have been admitted to the US. If an IO denies a petition due to intent they are basically saying CBP can't do their jobs AND similarly intent IS NOT enough to deny a petition on it's own. So even if intent WAS proven there would generally have to be other circumstances to substantiate the denial.

[LilyR 7]

There is a poster over on Immigrate2US whose husband ended up with a misrepresentation ban ruled at the visa interview at the London consulate. He did not overstay the vwp and did not commit any crimes. But it was decided that he "misused" the vwp so then they needed to file a 601 for a waiver.