Fled Asia due to pandemic, stuck on ESTA?

[gameyy 1]

Hello all. I've taken a look through this forum and haven't found anything similar to this, so I'm starting a new topic. Please feel free to point me in the right direction if I'm repeating an old topic. Here's my situation.

 

I am a USC. My wife is South Korean. We were married in Korea years ago and have been living in China in all that time. Due to the pandemic and visa cancellations, we were forced to travel suddenly to California, where we are living with family. Because there was no time to start the green card process, my wife flew in on the ESTA WVP. We were told that we cannot change status to a permanent resident, in spite of the fact that we have been married for years, that I have stable employment, etc. Borders officials recommended that we fly back to Korea and try for the B1/B2, then re-enter the US on that, then fly back in a few more months to apply for the IR-1. But this process of going back and forth could take years. We tried contacting some immigration lawyers and they are claiming that it is possible to switch from the ESTA to a permanent residence status, but this is the first time I've heard of it (and I haven't seen anything on this forum leading me to believe this is possible). I am very wary of contacting the USCIS directly because we had issues at immigration entering the airport since I had explained we were married and hoping to stay in the states. We want to do things legally, of course, but it seems that being too honest can get you in trouble as well. Suggestions? Is going back and forth the only way?

 

Thanks so much in advance everyone, this forum has already been a huge help.

[Lucky2Lucky 2,526]

Hi, you are able to apply for adjustment of status if you guys have now decided to live in the USA permanently. An immigration officer is not going to tell you this at point of entry because she wouldn't be let it (the ESTA is for tourist purposes) Since it appears your situation has changed since you arrived you can now apply to adjust status. Please note that she will be unable to leave/work for approximately 6 months. If she is unprepared to do this, then your option would be for her to go home and at any point you file for the spousal visa (IR1) which will take 1+ years. No need to contact USCIS at this time.

If you guys agree to not adjust status and she overstays her ESTA she loses it and will have to apply for a B1/B2 if she wants to visit. 

[Crazy Cat 39,326]

Was her intent to visit or to stay and adjust status when she entered the US via VWP?  That is THE relevant question.

Edited August 14, 2020 by Lucky Cat

[gameyy 1]

2 hours ago, Luckycuds said:

Hi, you are able to apply for adjustment of status if you guys have now decided to live in the USA permanently. An immigration officer is not going to tell you this at point of entry because she wouldn't be let it (the ESTA is for tourist purposes) Since it appears your situation has changed since you arrived you can now apply to adjust status. Please note that she will be unable to leave/work for approximately 6 months. If she is unprepared to do this, then your option would be for her to go home and at any point you file for the spousal visa (IR1) which will take 1+ years. No need to contact USCIS at this time.

If you guys agree to not adjust status and she overstays her ESTA she loses it and will have to apply for a B1/B2 if she wants to visit. 

Thanks so much, this is very helpful. I thought it was impossible to change status of an ESTA. This is what we were told.

 

2 hours ago, Lucky Cat said:

Was her intent to visit or to stay and adjust status when she entered the US via VWP?  That is THE relevant question.

So this is a difficult question to answer. We really had no concrete plans. We were living in China when our Chinese visas were cancelled suddenly, and this was the only place (US) we could get a flight to. However, at point of entry I explained that we would like to stay in the US if possible, which caused issues with immigration and led to an interrogation. However, looking at our situation and realizing that we were not trying to cheat the system by sneaking in and changing status, they let my wife enter. So I guess my question would be, do they have a record of this conversation? Again, we want to do things honestly and legally but we are not sure what the future will bring with this pandemic and have no idea where we'll end up (here or Korea). We'd prefer to stay here in the US, however.

 

Thanks again guys for your speedy responses! So helpful!

[Crazy Cat 39,326]

9 minutes ago, gameyy said:

do they have a record of this conversation?

Absolutely.......they have her on their radar.......but, since they allowed her to enter, they believed, at the time of entry, that her intent was to visit.   Normally, she would be able to legally adjust status now since her situation has changed.......but if specific statements were made during her "interrogation" which would lead USCIS to believe she lied (misrepresentation) during that questioning, then I could see some difficulty arising during an adjustment of status interview......

 

I have seen only one other case which was denied due to preconceived intent to commit visa fraud......and it arose from specific comments made during a secondary interview when the person entered the US.

 

The law is clear.  A person cannot enter the US via a non-immigrant route with the intent to stay and adjust status.

Edited August 14, 2020 by Lucky Cat

[gameyy 1]

1 minute ago, Lucky Cat said:

Absolutely.......they have her on their radar.......but, since they allowed her to enter, they believed, at the time of entry, that her intent was to visit.   Normally, she would be able to legally adjust status now since her situation has changed.......but if specific statements were made during her "interrogation" which would lead USCIS to believe she lied (misrepresentation) during that questioning, then I could see some difficulty arising during an adjustment of status interview......

 

I have seen only one other case which was denied due to preconceived intent to commit visa fraud......and it arose from specific comments made during a secondary interview when the person entered the US.

 

The law is clear.  A person cannot enter the US via a non-immigrant route with the intent to stay and adjust status.

Yes, this fits with what they said. They recommended getting a flight out and then applying for a different visa to return. One thing I found a little puzzling was that they recommended first getting a B1/B2, and then applying for an IR-1 later. Why not just apply for the IR-1 right away as someone previously suggested?

[Crazy Cat 39,326]

Just now, gameyy said:

Yes, this fits with what they said. They recommended getting a flight out and then applying for a different visa to return. One thing I found a little puzzling was that they recommended first getting a B1/B2, and then applying for an IR-1 later. Why not just apply for the IR-1 right away as someone previously suggested?

Yea, their suggestion makes no sense.....no need for a B2 if a person qualifies for ESTA.  But Visiting is allowed during the CR-1 process....on a B2 or VWP.

[gameyy 1]

1 minute ago, Lucky Cat said:

Yea, their suggestion makes no sense.....no need for a B2 if a person qualifies for ESTA.  But Visiting is allowed during the CR-1 process....on a B2 or VWP.

Yeah, I thought the same thing. Unless the time of stay on a B2 is longer than ESTA? Because I believe it is 6 months, which would give her a bit more time to be here, but then we'd need to stay there in Korea for even longer, so yeah I'm not too sure. My other thought was that perhaps it would be difficult to enter again on ESTA after the previous interrogation.

[Crazy Cat 39,326]

2 minutes ago, gameyy said:

My other thought was that perhaps it would be difficult to enter again on ESTA after the previous interrogation.

She is on their radar.........and no entry is guaranteed except for US citizens.

[SusieQQQ 11,584]

2 hours ago, gameyy said:

it seems that being too honest can get you in trouble as well. 

It’s not the “too honest” that is getting you in trouble, it’s the preconceived intent to immigrate on the wrong visa (or ESTA in your wife’s case) . If you are a citizen then your wife is exempt from the restriction on adjusting from ESTA, but the intent on entry may be a problem. Have seen a denial for similar reported. So IR visa is definitely the route to go.

 

Can you check and see if your wife’s ESTA is still valid? As you indicated some serious questions at the border, it’s possible it’s been retracted, or that there is a note on her file about entry next time, which may be why they recommended a B visa. ESTA is a big privilege and the flip-side of that is that it can be quickly lost if they suspect it is being misused.

[gameyy 1]

1 minute ago, SusieQQQ said:

It’s not the “too honest” that is getting you in trouble, it’s the preconceived intent to immigrate on the wrong visa (or ESTA in your wife’s case) . If you are a citizen then your wife is exempt from the restriction on adjusting from ESTA, but the intent on entry may be a problem. Have seen a denial for similar reported. So IR visa is definitely the route to go.

 

Can you check and see if your wife’s ESTA is still valid? As you indicated some serious questions at the border, it’s possible it’s been retracted, or that there is a note on her file about entry next time, which may be why they recommended a B visa. ESTA is a big privilege and the flip-side of that is that it can be quickly lost if they suspect it is being misused.

I'll look it up a little later and report back, as I don't have all the info on hand to check. Does anyone know if it is possible to enter multiple times on the same ESTA while waiting for the CR-1 to process? Or is it better to apply for a new ESTA each time? Or is it best to go the B2 route after all?

[aaron2020 11,651]

Where is your wife right now?

 

[gameyy 1]

2 minutes ago, aaron2020 said:

Where is your wife right now?

 

We are together in the US with family.

[aaron2020 11,651]

2 minutes ago, gameyy said:

We are together in the US with family.

Good.  It's perfectly fine for your wife to adjust status and get a green card.

The immigration lawyers are correct.  Your wife can file to adjust status in the US after entering on the VWP because you are a US citizen.

Ignore all the chatter about immigrant intent.  That's not a relevant question.  In Matter of Batista and Matter of Cavazos, your wife's immigrant intent upon entering the US does not matter and can not be a basis to deny her AOS.

 

 

[Crazy Cat 39,326]

10 minutes ago, aaron2020 said:

Good.  It's perfectly fine for your wife to adjust status and get a green card.

The immigration lawyers are correct.  Your wife can file to adjust status in the US after entering on the VWP because you are a US citizen.

Ignore all the chatter about immigrant intent.  That's not a relevant question.  In Matter of Batista and Matter of Cavazos, your wife's immigrant intent upon entering the US does not matter and can not be a basis to deny her AOS.

 

 

I have seen a similar case denied Adjustment of Status for misrepresentation during a secondary interview.  Normally, you would be correct, but suspected misrepresentation for specific statements made during the secondary questioning might pose an issue.  That goes beyond intent.

Edited August 14, 2020 by Lucky Cat