Immigrantly

Immigration thoughts from an Immigration Lawyer.

Danger of using ESTA and filing for Adjustment of Status

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ESTA (Electronic System for Travel Authorization) is a visa waiver program that allows citizens of certain countries to travel to the U.S. for business or pleasure without obtaining a visa stamp first. This system is very useful in many ways, but one of its limitations is that one entered with ESTA cannot change his/her status to another visa category, or adjust his/her status to a permanent resident. However, there is an exception for immediate family members (parent, spouse, or child) of a U.S. citizen. Does this mean you can just enter the U.S. with ESTA and apply for green card if you are an immediate family member of a U.S. citizen? Not quite!

You still need to have a non-immigrant intent when you enter the U.S. Otherwise, you will be charged with visa fraud, because you said you would return to your country when you entered the U.S., but your real intention was to apply for a green card during your stay under ESTA. This is a violation of immigration law, and you may be subjected to deportation and criminal penalty. Then, how do people apply for green card while they are under ESTA?

The rule that you can adjust your status to a permanent resident is for people who encounter some unexpected events during the stay under ESTA, which made them change their minds from going back to their country to applying for a green card. One example would be (this actually happened to one of my clients) that a girlfriend entered the U.S. under ESTA to visit her U.S. citizen boyfriend. She intended to go back to her home country after the short visit, but while she was in the U.S., the boyfriend proposed to her. They decided to get married right away, and it made more sense for her to remain in the U.S. with her then husband. In this case, the key point was that she intended to go back to her home country when she entered the U.S., but for some unexpected reason, she changed her mind. Changing one’s mind is allowed under immigration law, but lying is not.

Some people (even some lawyers) may suggest that you enter the U.S. under ESTA and then apply for a green card because it’s much easier and faster than applying for an immigrant visa abroad. However, be fully aware that such action is both illegal and risky, and may bring severe consequences. The government often looks at your intent, and if they find out that you were lying when you entered the U.S., your green card application will be denied, and even if you get a green card, it may be revoked and you may not be able to enter the U.S. for the rest of your life. Rather than taking this risk, a better action will be to plan ahead and start the immigration visa processing as soon as possible.

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