AOS from ESTA, is it a bad idea if sponsor is a pending citizen?

[jin4297 0]

Hi everyone, we are a young couple M23 & F23 that has been dating for over a year. F23 has been living for the past five years in the USA as a green card holder (Sponsored by her family) and M23 is Spanish, currently living in UK. Since we started dating, M23 is currently on his 3rd visit to the USA on an ESTA (for 2-3 weeks each time). F23 has visited him another 2 times for an additional 2 weeks each. 

 

F23 filed N400 in late October, and she is in the process of getting her citizenship. On the website it says that the case is being reviewed after completing the biometrics appointment in November. We would have eventually filed for a Fiance visa once she was able to sponsor me as a citizen. However, as of today, the approximate time jumped significantly and it seems the citizenship application could be processed way earlier than expected. As of today, the website says that the approximate waiting time until the case decision is 3 months (Does that mean that the approximate time for the interview is 3 months or for the full case approval to be 3 months if the interview goes ok?). 

 

We are both very stressed from this long wait and if it's possible to make such a big move obeying the law we would really appreciate it.

 

Let us list some questions/concerns:

 

• If F23 gets her citizenship before M23's ESTA 90 days expires, can we file for an AOS if we marry? M23 booked the flight back only 3 weeks after entry. If the N400 takes longer than his ESTA days, would we have grounds to still legally file for AOS despite the overstay until F23 becomes a citizen and we get married?
• M23 has entered with an ESTA always stating that he was visiting F23, and on the form he has entered her address as to where he was staying for the trip. Is her citizenship in danger if M23 overstays because of the above scenario? Imagine that she is granted citizenship, could she lose it if somehow the judge flags these circumstances as fraudulent in a future interview for our marriage? 

 

Thank you so so much to everyone in advance!

[Boiler 45,657]

Lets assume it all goes well with Naturalisation, some places do same day swearing in, some you have to wait for the regular ceremonies.

 

Any overstay when adjusting through marriage to a USC is forgiven

 

After filing it will be a few months before you can work and longer before you can travel outside the US

 

Fees are going up soon, where will she be interviewing.

 

 

[jin4297 0]

Quote

Lets assume it all goes well with Naturalisation, some places do same day swearing in, some you have to wait for the regular ceremonies.

 

Any overstay when adjusting through marriage to a USC is forgiven

 

After filing it will be a few months before you can work and longer before you can travel outside the US

 

Fees are going up soon, where will she be interviewing.

 

We would be filing from Nevada. Same as the naturalization. 

 

M23 has a job back in UK, should he drop it as soon as possible? Chances are that he could continue online until we file for everything, but we are not aware if at any point this would be an issue.

 

The increase of fees wouldn't be a huge problem, we would try to DIY so we keep the expenses at a minimum and could save for a house.

Edited February 15 by jin4297
Forgot to quote

[Boiler 45,657]

VWP does not allow you to work even remotely.

 

As far as job etc is concerned well that is a personal choice as is deciding to adjust.

[jin4297 0]

13 minutes ago, Boiler said:

VWP does not allow you to work even remotely.

 

As far as job etc is concerned well that is a personal choice as is deciding to adjust.

 

 

Alright, if it's not allowed we wouldn't want to risk it at all... Thank you so much for answering that!

 

I hope that someone can shed some light on this as well

2 hours ago, jin4297 said:

• M23 has entered with an ESTA always stating that he was visiting F23, and on the form he has entered her address as to where he was staying for the trip. Is her citizenship in danger if M23 overstays because of the above scenario? Imagine that she is granted citizenship, could she lose it if somehow the judge flags these circumstances as fraudulent in a future interview for our marriage? 

 

[Boiler 45,657]

That is a non issue

[SalishSea 17,921]

2 hours ago, jin4297 said:

 

We would be filing from Nevada. Same as the naturalization. 

 

M23 has a job back in UK, should he drop it as soon as possible? Chances are that he could continue online until we file for everything, but we are not aware if at any point this would be an issue.

 

The increase of fees wouldn't be a huge problem, we would try to DIY so we keep the expenses at a minimum and could save for a house.

You cannot work remotely without an EAS.   After filing for one (along with AOS), that  can take months and months to arrive.

[CMJuilland 485]

As far as legalities and potentialities are concerned, you got great responses from @Boiler and @SalishSea, two members way more qualified to give them than myself. 

While you didn’t ask for advice, I am still going to take the liberty to ask a few questions/provide some perspective:

• Have you considered what it will mean for M to be here in the States, unable to work, unable to drive (most likely, at least for a few weeks), and unable to leave the country in case of an emergency back in Europe? 
• Have you familiarized yourselves with how long AOS (and even EAD/AP) takes these days? 
• Have you discussed alternative routes, i.e. getting married and then filing I-130 with the goal to obtain a spousal visa? 

The AOS limbo is often underestimated, especially by people who are used to having a routine (job, school, etc.) and having at least some independence (being able to get around -> driving, etc.). I have personally been through it when processing times were still somewhat bearable, and I wouldn’t do it again. Yes, long-distance relationships are difficult, and being “on hold” like that isn’t fun. However, AOS can put a real strain on y’all’s relationship, and while the short-term gain (yay, we can stay together in one place) may seem to outweigh the potential problems, it is worth considering them. 

As it seems right now (and I have no proof of that), USCIS seems to gear up to discourage AOS, which may mean even less resources will be provided for that part, and that may make the whole process even longer than it already is. Just something to consider. 

Unsolicited statement: if it were me, I would seriously consider getting married, getting all the forms for I-130 ready, and submit them once F has naturalized. Yes, it means long-distance for a while longer, but especially medium to long-term, it may pay off. 

Best of luck to both of you, and I hope your naturalization date comes soon! 

Edited February 15 by CMJuilland

[Boiler 45,657]

Just a quick comment he is from the UK and no mention of needing to go to Europe.

 

Obviously the personal issues we do not know, I think it is fair to say most people would adjust. 18 months or so is a long time but then again we do not know what he needs to finish off if anything.

[jin4297 0]

Hi everyone again! - We have an update on this:

 

We just checked on the website and her N400 interview is by the end of March. Now the thing is that the wait time has increased to 7 months 🤔 Is it reasonable to think the Oath ceremony is celebrated a few days after? 

 

We would like to answer these, and thank you so much for contributing to the post:

 

On 2/15/2024 at 9:13 AM, CMJuilland said:

As far as legalities and potentialities are concerned, you got great responses from @Boiler and @SalishSea, two members way more qualified to give them than myself. 

While you didn’t ask for advice, I am still going to take the liberty to ask a few questions/provide some perspective:

• Have you considered what it will mean for M to be here in the States, unable to work, unable to drive (most likely, at least for a few weeks), and unable to leave the country in case of an emergency back in Europe? 
• Have you familiarized yourselves with how long AOS (and even EAD/AP) takes these days? 
• Have you discussed alternative routes, i.e. getting married and then filing I-130 with the goal to obtain a spousal visa? 

The AOS limbo is often underestimated, especially by people who are used to having a routine (job, school, etc.) and having at least some independence (being able to get around -> driving, etc.). I have personally been through it when processing times were still somewhat bearable, and I wouldn’t do it again. Yes, long-distance relationships are difficult, and being “on hold” like that isn’t fun. However, AOS can put a real strain on y’all’s relationship, and while the short-term gain (yay, we can stay together in one place) may seem to outweigh the potential problems, it is worth considering them. 

As it seems right now (and I have no proof of that), USCIS seems to gear up to discourage AOS, which may mean even less resources will be provided for that part, and that may make the whole process even longer than it already is. Just something to consider. 

Unsolicited statement: if it were me, I would seriously consider getting married, getting all the forms for I-130 ready, and submit them once F has naturalized. Yes, it means long-distance for a while longer, but especially medium to long-term, it may pay off. 

Best of luck to both of you, and I hope your naturalization date comes soon! 

 

• M23 is willing to accept the wait. F23 can cover for us until M23 is able to contribute.
• We have not seen much yet but our current expectation is for the work permit (To allow M23 to exist here with a bank account, a driving license, and a job) to take less than a year and the conditional green card around 1.5 to 2 years... We are not sure since the processing times seem to depend on where you file. We would be filing from Nevada, which we think needs to be sent to Phoenix. In addition, the filing costs are increasing... Hopefully in order to process cases faster but it's a stretch. 
• We originally discussed filing a Fiance visa.

 

We do have some doubts, and as we get closer to the date we would like to start drafting the case filing using examples from VJ and requesting help if needed as well.

 

Could anyone let us know if M23 can be out of status while the case is being processed by USCIS and he hasn't received his work permit yet? i.e. Being a passenger in a car, traveling to another state by plane... How would he address himself if he is questioned by authorities? Since the 90-day stamp is expired on his passport, but he would have a case number with USCIS.

 

Thank you again for everyone's help on this. We really appreciate it!

 

[OldUser 6,858]

10 hours ago, jin4297 said:

Hi everyone again! - We have an update on this:

 

We just checked on the website and her N400 interview is by the end of March. Now the thing is that the wait time has increased to 7 months 🤔 

Those estimated times is a joke. It's a random number not correlating to reality with all. Unless there's some issue, she'd naturalize in April / May.

 

 

However, bear in mind, planning to adjust status while overseas before coming to the US on ESTA can be seen as fraud by USCIS.

 

Adjustment is the worst option immigration wise. To have a clean immigration history and minimal chance of complications - marry and go spousal visa route.

 

Edited February 17 by OldUser

[Boiler 45,657]

When you file to adjust you will receive a NoA, that is basically the document that keeps you safe.

 

When you file to adjust you may be considered a resident in your State, check DMV web site they are all different.

 

https://dmv.nv.gov/dlresidency.htm Looks like you may be OK with the NoA.

 

EADs I still say 6 months, there are always outliers, I have seen some get it very quickly.

 

Sorry I typed this but never hit the go button!

Edited February 17 by Boiler