How to marry a green card holder as an overstayed ESTA visa holder and live together?

[1pnb 0]

Hello, 

I am Lithuanian citizen (EU) visiting U.S. on ESTA (VWP) visa. Me and my girlfriend (also Lithuanian) decided we want to get married and live in U.S.

 

She is currently green card holder (permanent resident) for 2 years living in U.S. 

 

We know each other for more than five year and were having an open relationship during this time. My ESTA visa expires on August 19, 2020. I am currently with her in California.

 

I am wondering what would be the best way with least consequences to stay together in US and eventually become permanent resident and then citizen of US and if that (marying while overstaying visa) is considered a dificult case. I am thinking about signing up with Boundless or SimpleCitizen and buying their service. I am not sure if I need to hire a lawyer...

 

Any Help Appreciated!

[SusieQQQ 11,587]

You can’t. You can’t adjust from an ESTA on any basis other than IR. And you can’t adjust status from an overstay of any status through marriage to an LPR either. So it’s a double “you can’t”. Your AOS application will be denied and by the time that happens, you’ll have accrued enough overstay to face a ban as well. Your only option is to return home before your ESTA stay expires and await processing for an F2A visa.
 

 

Edited August 10, 2020 by SusieQQQ

[SusieQQQ 11,587]

offical sources:
 

 

INA section 245(c)(4) renders aliens admitted under the VWP ineligible to adjust status to that of a person admitted for permanent residence. This provision, however, includes an exception for immediate relatives of U.S. citizens

https://www.uscis.gov/sites/default/files/document/memos/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

 

An alien is barred from adjustment of status if the alien is in an unlawful immigration status on the date of filing the adjustment application. ...

Aliens in unlawful immigration status generally include those:

-Who entered the United States without inspection and admission or parole; and

-Whose lawful immigration status expired or was rescinded, revoked, or otherwise terminated. 
https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3

 

 

 

Edited August 10, 2020 by SusieQQQ

[HRQX 4,145]

27 minutes ago, SusieQQQ said:

So it’s a double “you can’t”.

It'll actually become a triple whammy after Aug. 19. In addition to the 2 bars you mentioned above there is INA 245(c)(2) bar: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4

Any adjustment applicant is ineligible to adjust status under INA 245(a) if, other than through no fault of his or her own or for technical reasons, ^[1] he or she has ever:

• Failed to continuously maintain a lawful status since entry into the United States; ^[2] or

• Violated the terms of his or her nonimmigrant status. ^[3] 

[HRQX 4,145]

45 minutes ago, 1pnb said:

My ESTA visa expires on August 19, 2020. I am currently with her in California.

Leave the US, ASAP. Don't ruin your chances at path towards legal immigration.

[Unlockable 7,315]

Unfortunately, you can't do the things you want to do. You and your girlfriend are ineligible. 

 

Your best and safest option is for you two to get married right away, then you return to your country while she files for you. Yes it is going to take a while, but it is better than the alternative which is you being in the US with no legal status for years. 

[Boiler 45,900]

How did she obtain her residency?

[Dashinka 24,707]

I agree with the other posters above, there is no path for AOS in this case.  As @Unlockable stated the safest option is to get married and then leave prior to your authorized stay expiring thereby avoiding any bars to re-entry and any issues with ESTA in the future.  It will take a couple of years for the F2A visa processing and since apparently your fiance will not be eligible to file for citizenship for the next couple of years, more than likely the F2A will process first.  You will also be able to visit as long as you don't mess up your ESTA/VWP privilege.

 

Good Luck!

[NancyNguyen 1,658]

9 hours ago, 1pnb said:

Hello, 

I am Lithuanian citizen (EU) visiting U.S. on ESTA (VWP) visa. Me and my girlfriend (also Lithuanian) decided we want to get married and live in U.S.

 

She is currently green card holder (permanent resident) for 2 years living in U.S. 

 

We know each other for more than five year and were having an open relationship during this time. My ESTA visa expires on August 19, 2020. I am currently with her in California.

 

I am wondering what would be the best way with least consequences to stay together in US and eventually become permanent resident and then citizen of US and if that (marying while overstaying visa) is considered a dificult case. I am thinking about signing up with Boundless or SimpleCitizen and buying their service. I am not sure if I need to hire a lawyer...

 

Any Help Appreciated!

Boundless and SimpleCitizen are filling service, they do nothing than filling and sending your application. You have no way to adjust status in the US.

[HRQX 4,145]

1 hour ago, Dashinka said:

You will also be able to visit as long as you don't mess up your ESTA/VWP privilege.

Yup. And if OP follows @Unlockable's advice of marriage* in the US (and leaving the US before Aug. 19), then he'll be exempt to the Schengen Area; UK and Ireland; Brazil; mainland China; and Iran proclamations as a spouse of LPR. https://www.federalregister.gov/documents/2020/03/16/2020-05578/suspension-of-entry-as-immigrants-and-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of

"(ii) any alien who is the spouse of a U.S. citizen or lawful permanent resident" is exempt

 

*Even if the marriage certificate certified copies take a while to be issued (i.e. LA county) OP should leave before Aug. 19. OP's new LPR wife could mail him a certified copy after she gets them.

Edited August 10, 2020 by HRQX

[AnnamM 7]

8 hours ago, HRQX said:

Leave the US, ASAP. Don't ruin your chances at path towards legal immigration.

Not only ruining your own chances, but the chances of thousands waiting for immigrant visa approval and the many filing tomorrow.

This is exactly the reason -  my immigration attorney said - why agencies raise immediately red flag for not "arriving with honest intent"

and also would use your actions as statistics against honest and legally compliant couples.

 

1pnb, leave before the ESTA clocks out and follow the legal way to marry + reside in USA. I would not wait for ICE to knock on the door.

One good thing, there is no waiting period for marriage license in CA that allows you to marry before lawful departure. (https://caliofficiants.com/california-marriage-license/)

 

[SusieQQQ 11,587]

2 hours ago, Dashinka said:

I agree with the other posters above, there is no path for AOS in this case.  As @Unlockable stated the safest option is to get married and then leave prior to your authorized stay expiring thereby avoiding any bars to re-entry and any issues with ESTA in the future.  It will take a couple of years for the F2A visa processing and since apparently your fiance will not be eligible to file for citizenship for the next couple of years, more than likely the F2A will process first.  You will also be able to visit as long as you don't mess up your ESTA/VWP privilege.

 

Good Luck!

Ah yes, good point. One day overstay and the ESTA is gone, and almost certainly any chance of a B2 visitor visa with it, making even visits impossible while waiting. 

[Loren Y 2,756]

If you need married fast, and certificate the same day, A quick drive to Las Vegas, NV, and I can have you married and certificate in hand within an hour. Then you can file before you leave even. Note: as others have stated, you will still need to leave before your ESTA expires, but you will be able to start the process before you leave even.

[JFH 12,191]

The most important question is how the LPR spouse obtained LPR status. If that was based on marriage to a USC they have an uphill battle if they have been in a relationship for 5 years. 

[1pnb 0]

7 hours ago, Boiler said:

How did she obtain her residency?

 

Green Card Lottery

16 minutes ago, JFH said:

The most important question is how the LPR spouse obtained LPR status. If that was based on marriage to a USC they have an uphill battle if they have been in a relationship for 5 years. 

No, it was Green Card Lottery