marriage and AOS from ESTA

[ARose 0]

Hi, 

 

I'm a US citizen and I've been with my partner who is from Ireland for 7+ years now. For the last 3 years we've been living together in Ireland, however I came home recently for family reasons and will now be staying here. My partner is here with me, he came on ESTA/VWP to visit for a couple months and work remotely while doing so.

My partner (my fiance as of a couple months ago) and I are discussing our next steps and future. We've been researching into K-1, CR-1 visas and have seen that the current wait times are quite long. I have to stay in the states and now we really are getting nervous about being separated and having to do long distance again. After researching on this forum, I've noticed that some couples have opted to get married while their parter is visiting on tourist visa (change of plans etc) and then file for I-130 and I-485/Adjustment of Status which gives them legal authorization to stay past the 90 day visa and await permanent residency approval/interview/etc while here. We genuinely had no idea this was an option until now and definitely had no intentions on going this route. From what I've read, the intent is the main factor and this is determined at POE... And his intent at POE was just visiting my family. I also read on here that questionable intent is, alone, not enough reason to deny AOS at the interview anyway (?).

Most of the posts I had read on this topic were from a couple of years ago. I'm just wondering if this is still legally an option, if people have had any recent experience with this, if there are risks of rejection of I-130/AOS (and if so what those might be). Any advice at all would be so so appreciated! Thank you 😊

[mushroomspore 3,044]

8 minutes ago, ARose said:

Hi, 

 

I'm a US citizen and I've been with my partner who is from Ireland for 7+ years now. For the last 3 years we've been living together in Ireland, however I came home recently for family reasons and will now be staying here. My partner is here with me, he came on ESTA/VWP to visit for a couple months and work remotely while doing so.

My partner (my fiance as of a couple months ago) and I are discussing our next steps and future. We've been researching into K-1, CR-1 visas and have seen that the current wait times are quite long. I have to stay in the states and now we really are getting nervous about being separated and having to do long distance again. After researching on this forum, I've noticed that some couples have opted to get married while their parter is visiting on tourist visa (change of plans etc) and then file for I-130 and I-485/Adjustment of Status which gives them legal authorization to stay past the 90 day visa and await permanent residency approval/interview/etc while here. We genuinely had no idea this was an option until now and definitely had no intentions on going this route. From what I've read, the intent is the main factor and this is determined at POE... And his intent at POE was just visiting my family. I also read on here that questionable intent is, alone, not enough reason to deny AOS at the interview anyway (?).

Most of the posts I had read on this topic were from a couple of years ago. I'm just wondering if this is still legally an option, if people have had any recent experience with this, if there are risks of rejection of I-130/AOS (and if so what those might be). Any advice at all would be so so appreciated! Thank you 😊

You're fine to marry and adjust status. You're correct that intent is determined at the border. And you're also correct that even an immigration officer suspected fraud, intent alone isn't enough to open a fraud investigation and it's certainly not enough to prosecute. They need to show a lot of evidence and that multiple factors were at play to convince a judge that fraud was committed. Obviously, if you're genuinely not committing fraud, you have nothing to worry about. The green card interview is way more about making sure you guys are a real couple. 

 

Anyway, the only thing I will caution you on is that he cannot continue to work remotely. Even if it's for a non-American company paying him non-American money. If you're inside the US, any work is deemed as "work" and you need employment authorization to be doing it. It's free to file for employment authorization with AOS. It's Form I-765. You should also file I-131, which is also free (Advanced Parole, which will allow your husband to re-enter the US if he has to leave for any reason while his AOS is pending). He should not leave the US without an approved Advanced Parole document while his AOS is pending. If he does leave without Advanced Parole while his AOS is still pending, his whole AOS will be deemed abandoned and you'd have to start all over with a spousal visa, which means you'd be separated until the spousal visa is issued.

Edited May 11, 2022 by mushroomspore

[Crazy Cat 41,982]

4 hours ago, ARose said:

After researching on this forum, I've noticed that some couples have opted to get married while their parter is visiting on tourist visa (change of plans etc) and then file for I-130 and I-485/Adjustment of Status which gives them legal authorization to stay past the 90 day visa and await permanent residency approval/interview/etc while here.

Once you are married, he can legally stay and adjust status.  However, it could be as long as 8 months before he can work inside the US and/or leave the US without abandoning his adjustment. Not everyone who comes for a visit can do that.  Here is the guide you need to follow.

 

 

Edited May 11, 2022 by Crazy Cat

[Crazy Cat 41,982]

A word of advise:  It is smart to apply for adjustment of status prior to the expiration of his current I-94.  

[Rocio0010 5,579]

38 minutes ago, ARose said:

work remotely while doing so.

His visa doesn't authorize him to work, even if it is remotely. He has to apply for an EAD, and will be able to work in 8-9 months. He should stop working.

 

He's fine to stay and adjust status. Intent was determined at the border.

[Boiler 45,727]

This is the second thread on this subject this morning 

[ARose 0]

2 hours ago, mushroomspore said:

Anyway, the only thing I will caution you on is that he cannot continue to work remotely. Even if it's for a non-American company paying him non-American money. If you're inside the US, any work is deemed as "work" and you need employment authorization to be doing it. It's free to file for employment authorization with AOS. It's Form I-765. 

Thanks so much for the replies everyone! 

Good to know about the work situation. So my fiancé works in pharmaceutical biotech and could qualify for the H1-B visa for work. I’m wondering if, during the 8ish months while waiting for EAD, he applied for and got a job that would sponsor H1-B, if he’d be able to work under that visa while waiting for AOS? Or would that not be allowed/would AOS then be forfeited? 

[Chancy 6,242]

3 minutes ago, ARose said:

I’m wondering if, during the 8ish months while waiting for EAD, he applied for and got a job that would sponsor H1-B, if he’d be able to work under that visa while waiting for AOS? Or would that not be allowed/would AOS then be forfeited?

 

No need for H1B.  If he gets a job offer while pending EAD, just request an expedite using the offer letter as supporting evidence.

 

[Rocio0010 5,579]

9 minutes ago, ARose said:

he applied for and got a job that would sponsor H1-B, if he’d be able to work under that visa while waiting for AOS

But he'd have to leave the country to apply for H1-B. If he goes out of the country without AP, his AOS will be deemed abandoned and he'd have to start all over, with either a K1 or a spouse visa.

[Boiler 45,727]

14 minutes ago, ARose said:

Thanks so much for the replies everyone! 

Good to know about the work situation. So my fiancé works in pharmaceutical biotech and could qualify for the H1-B visa for work. I’m wondering if, during the 8ish months while waiting for EAD, he applied for and got a job that would sponsor H1-B, if he’d be able to work under that visa while waiting for AOS? Or would that not be allowed/would AOS then be forfeited? 

Is the job cap exempt?

[mushroomspore 3,044]

12 minutes ago, ARose said:

Thanks so much for the replies everyone! 

Good to know about the work situation. So my fiancé works in pharmaceutical biotech and could qualify for the H1-B visa for work. I’m wondering if, during the 8ish months while waiting for EAD, he applied for and got a job that would sponsor H1-B, if he’d be able to work under that visa while waiting for AOS? Or would that not be allowed/would AOS then be forfeited? 

There's no point in doing H1B if you guys are gonna do AOS. It's not so much that it would "forfeit" the AOS. It's just pointless because any visa is meant to be used to enter the USA under a specific status. However, he was already admitted under ESTA as a visitor/tourist and then he'll be under "authorized stay" (exactly what it sounds like) once the AOS is filed and until it is adjudicated. There's just no use in having 2 legal processes going if you're doing AOS. As another person pointed out, if he is offered a job, he can use that to expedite form I-765.

[ARose 0]

13 minutes ago, Boiler said:

Is the job cap exempt?

Could be, but not necessarily. Right now he’s working for a big pharmaceutical company. But he’s trained in a few different areas, one of them being research, so I suppose if he worked for university or government research program then yes. He’s willing to take anything in the field at this point. 

[ARose 0]

39 minutes ago, Chancy said:

 

No need for H1B.  If he gets a job offer while pending EAD, just request an expedite using the offer letter as supporting evidence.

 

Great to know that it’s possible to expedite EAD - as not having job for ~8 months would be the main stressor for going down this route! Hopefully he’d get an offer letter while waiting. 

[Chancy 6,242]

Just now, ARose said:

Great to know that it’s possible to expedite EAD - as not having job for ~8 months would be the main stressor for going down this route! Hopefully he’d get an offer letter while waiting. 

 

There's recent news that USCIS is prioritizing EAD processing over AP, so some applicants are getting their EAD within weeks (not months) of filing.  Still no guarantees though.  Best to have a job offer ready for the expedite request.

 

[Boiler 45,727]

24 minutes ago, ARose said:

Could be, but not necessarily. Right now he’s working for a big pharmaceutical company. But he’s trained in a few different areas, one of them being research, so I suppose if he worked for university or government research program then yes. He’s willing to take anything in the field at this point. 

H1b is dual intent so a good option and then adjust at your convenience