Generaltito

I have spoken to four different attorneys. Three over the phone and one in person. More or less they expressed the same concerns. Not one every declined to help. They just wanted us to be aware of potential problems. Most of the feedback I am receiving is find another attorney. Can anyone suggest a competent attorney? Also, I can't seem to find any cases similar to our situation when performing a search. I saw a few who entered a B visa but none who entered with an ESTA and met husband and married while in ESTA overstay status. Many of the couples met prior to the overstay and marriage. Some have known each other for years.

Hello everyone, Just wanted to provide an update after our in-person consult with the attorney this afternoon. I will make it quick as it's been a long day. The attorney was honest with us, and she was very sympathetic to the situation. Her intent at entry is virtually impossible to prove, so it is not a big deal. What will be problematic is explaining why she overstayed over a year and cancelled the return ticket. She did admit, yes, many people have done the same thing. Her age also factors into the decision. She is a young woman who was not gainfully employed back home when she decided to travel. The fact, she worked in a consulate processing passports and visas doesn't help her cause either. They will ask her how she supported herself during her time in the USA. Obviously, they know she had to have some sort of job to support herself. Many people in this forum have mentioned this overstay marriage situation frequently happens. The attorney did admit yes it happens, but the majority of the couples knew each other before the overstay occurred. I searched around online today and could not really find any similar cases. She said we can try for the Adjustment Of Status, but it will be a difficult, uphill battle. The attorney said my wife's circumstances could make her a deer in the headlights at an interview, The answers to some USCIS questions will force her to lie or tell the truth, which will hurt her case anyway. She asked us to give her a few days as she wanted to search through some cases to try to find a situation similar to ours. My wife is ready to pack it up and move to Germany together. I think she is so scared right now that she just wants out of the United States. I will update in a few days when we hear back from the attorney.

That is correct. She told CBP she was only staying 4 weeks I believe. Did bring all her clothes, birth certificate university diploma etc

I appreciate everyone's opinion. Everyone has been very helpful. We are not going to make a decision based on this discussion form. I was planning on seeking legal advice. I just decided to post because I figured others would chime in that have found themselves in this situation. We found a lawyer this evening that deals with this stuff everyday. He said all hope is not lost. He isn't guaranteeing the AOS approval. He said the situation is messy. We have an appointment tomorrow to bring him all the information he asked for. He wants to study the situation and then share his thoughts with us. He was kind enough to send us some decisions from a few of his cases involving ESTA overstays and marriage. 3 of the 7 were approved. The others were not because of clear intent. Entered, overstayed, had the chance to return and never did. Of course other factors were involved such as finances etc. He said this sounds like an intent issue not marriage fraud. I will report back tomorrow. Thanks again everyone

Thanks for all the advice. It is a mess. We can't even think straight right now. My wife did suggest this afternoon moving to Germany, where she has family. As a commercial pilot, I can easily get a job in Europe, as I was born in Austria and moved to the United States at the age of three. We are going to have a free consult with another attorney tomorrow and then decide. I guess it's a lesson learned. Follow the immigration rules.

Exactly this is what we are thinking. She was already subject to the 10 year ban when she met me. Another concern is what this guy she dated for a few weeks said to USCIS. I am not sure if the USCIS really looks at the tips received on the tip submission page.

I agree. Regardless if the attorney is aware or not USCIS almost always asks why you overstayed according to the attorney today. She can't even tell them she fell in love because we didn't meet until almost a year after the overstay. That gap of almost a year will likely open another can of worms from the USCIS

Thanks for the responses everyone. My. Nephew just sent me this link. She makes it sound like it's virtually suicide to attempt to adjust status. I might call her tomorrow for a consult. I am interested in hearing her reasons. Link below:

Yes I completely agree with you 100%. She realizes now that she really screwed this up now.

Hello davidvs, Thanks for the response. She does not work on the corporate side. She handles everyday cases from marriage, AOS to DACA etc. She did tell us if she entered on a regular visa it's straightforward. The ESTA is not considered a visa. What I forgot to add is she entered with her EU passport (through grandfather) because it's very difficult to get a Visa for the US in her country. What also complicates the matter is she was not gainfully employed in her home country and she brought all her belongings with her as well as her birth certificate and University diploma. USCIS will likely ask which documents she brought with her. There is no reason to bring a University diploma with you when entering the US as a tourist on an ESTA. It almost seems as the attorney was trying to give me the hint that this situation raises flags everywhere (the marriage). When you apply for a AOS on an ESTA is a completely different ball game. There is alot more scrutiny. My wife is so shattered right now. Her family kept telling her to go back home before the 90 days expired and she didn't want to listen.

Hello everyone, We had a consult this morning with an immigration attorney from a large firm here in California. Kai G response is almost spot on. She told us this is a very very messy situation. Wether you lied to a CBP officer at entry is irrelevant. Under the ESTA program you waive your right to see and immigration judge or contest the overstay. When you apply for an ESTA and you agree to the terms and you are supposed to leave before the 90 days. She said that is the first issue. She told us even if you marry yes, you can adjust status but it is not guaranteed given the circumstances. The attorney told us the first thing they will ask is why didn't you go home? She didn't come from a country where safety and well-being is a concern. Secondly, USCIS can see the entry and a departure when the airline submits some sort of message that a passenger has left the USA. When they do not see that exit they will likely pull the reservation. If they ascertain the ticket was cancelled by the passenger that is considered intent to remain. She said they will be very aggressive with questioning. She also told us her being in her mid twenties with a university degree and worked in a consulate works against her. Being able to read and comprehend English she knew the rules before accepting the terms of the ESTA and is basically thumbing her nose at the immigration system. Another red flag is how was she supporting herself while in the United States? Working with an ESTA entry is grounds for removal and ability to contest available to the individual. As for the marriage, she said although not illegal it will raise a flag. Dating to marriage in 8 months is relatively short but not likely an issue. The issue is USCIS will look at the complete picture and will look at the marriage as an avenue for my wife to obtain status. My wife being only 26 will also be taken into consideration. People in the 21-35 age range are in the category of highest overstays. We basically have everything working against us as the ESTA rules are clear. She broke every rule and never made an attempt to return home. Lastly, she said whoever told us just apply for an AOS and don't worry obviously does not understand the rules of the ESTA program and the AOS process. We have another consult tomorrow with another firm and we will see what they have to say. It seems like when the attorney heard her story she already knows she broke every rule. I sensed the attorney was hesitant to help us with the AOS as Kai said, if an attorney knows you are guilty he or she cannot defend you as innocent.

I apologize. Didn't mean to put you in that position. Thanks for all your help.

Is it still immigration fraud if we didn't even know eachother upon her arrival? She was being truthful when CBP spoke to her and she did that she was leaving. Once she experienced life in the US for a month or so she cancelled her return ticket and decided to stay.

I understand. My nephew said her best option is to go home and even though she is subject to the10 year ban new applications can be filed. He seems convinced she would be denied for adjustment of status and they would start removal proceedings anyway. He also mentioned something about a motion to reopen would likely be denied. He said there is no way to convince a USCIS officer that she didn't mean to overstay. Cancelled her ticket, lied to CBP on entry not to mention an educated person who worked in a Consulate should know to respect the immigration laws. My nephew is slowly sinking our boat but it seems like he has valid points.

Hello and thank you for the response. It was actually I who proposed. She never once mentioned wanting to get married. When you say misrepresented her intent, are you referring to what she said to the CBP officer at inspection? I'm getting the sinking feeling my nephew although not an attorney yet might be correct that this could turn into a hand grenade with the pin out.

Hello everyone, I met and married a wonderful woman who entered the US on an ESTA in 2020. At the time of our marriage, she had overstayed her ESTA by over one year . We married after nine months of dating (June 2022). We are starting the process of adjustment of status. She told me last night that she cancelled her return ticket home a few months after her 90 day ESTA expired. She has also been working in the US illegally since May 2021. She told me when we met she never had any plans to go back home once she entered the US on the ESTA even if she wasn't with me. I knew this going into the marriage. I know the first thing people are thinking is she is using me for a Green Card. We really do love each other. She has a University degree from back home and has worked at an Embassy for an unrelated country before losing her job when COVID hit. Is applying for an adjustment of status going to be like walking into a lion's den? My nephew is in his third year at University studying to become an immigration attorney. He told me we will have one hell of an uphill battle. When I asked him why he stated the following: - She told the port of entry CBP officer at inspection she was leaving before the 90 days and she was only coming to the USA to visit a few cities. - She was well aware her intent upon entry was never to go back home. - She worked at a Consulate and should of known better to overstay. - She cancelled her return ticket - Working illegally for cash - She dated one man while here in San Diego. She ended the relationship. It ended on bad terms and we think he reported her to ICE and USCIS. - She had every opportunity to return home and instead had a total disregard for the ESTA rules by purposely remaining in the USA knowing she did not already have a boyfriend or fiancee in the USA. - Dating men from dating apps instead of going home before the 90 days. He stressed cancelling the return ticket shortly after the 90 days expires is not a good look. He said she of just let it to be and let the departure date pass. It shows intent of not returning. - Finally, my nephew stated though not unheard of, but from first date, to living together after two weeks to engagement to marriage in less than 9 months and after overstaying for over year will raise flags. I would appreciate everyone's honest opinion good or bad. Are we facing a next to impossible task of getting an adjustment of status? My nephew seems to think so. Thanks in advance!