ESTA To AOS Potential Problem?

[Generaltito 4]

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!

Edited July 19, 2022 by Generaltito

[SalishSea 17,826]

1 hour ago, Generaltito said:

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!

She misrepresented her intent.  That is a big deal.

 

And the circumstances of your marriage.......    do you feel she may be using you for a green card?   I'm not suggesting that is the case, just asking if you think it is possible.

[Generaltito 4]

1 minute ago, Jorgedig said:

She misrepresented her intent.  That is a big deal.

 

And the circumstances of your marriage.......    do you feel she may be using you for a green card?   I'm not suggesting that is the case, just asking if you think it is possible.

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.

[SalishSea 17,826]

16 minutes ago, Generaltito said:

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.

Yes, if she lied at inspection and said she would return home when she knew she would overstay, that is misrepresentation.  In other words, had she been honest and said "I'm going to overstay my 90 days, and also work without authorization," she would not have been admitted.  

[Generaltito 4]

1 minute ago, Jorgedig said:

Yes, if she lied at inspection and said she would return home when she knew she would overstay, that is misrepresentation.  In other words, had she been honest and said "I'm going to overstay my 90 days, and also work without authorization," she would not have been admitted.  

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.

[SalishSea 17,826]

1 minute ago, Generaltito said:

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.

Right.  Since you're telling us she lied about her intent, we cannot advise you to try to AOS.  Obviously that would be immigration fraud.

 

She would be subject to the ban, but she could apply for a waiver.

[Generaltito 4]

2 minutes ago, Jorgedig said:

Right.  Since you're telling us she lied about her intent, we cannot advise you to try to AOS.  Obviously that would be immigration fraud.

 

She would be subject to the ban, but she could apply for a waiver.

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.

[SalishSea 17,826]

1 minute ago, Generaltito said:

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.

You have now changed your story: 

 

1 hour ago, Generaltito said:

She was well aware her intent upon entry was never to go back home.

1 hour ago, Generaltito said:

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.

 

Sorry, I'm out.  This thread is devolving into TOS territory.  Good luck.

[Generaltito 4]

4 minutes ago, Jorgedig said:

You have now changed your story: 

 

 

Sorry, I'm out.  This thread is devolving into TOS territory.  Good luck.

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

[Daphne . 1,853]

Even though there are more red flags in this case than I can count, I can’t help but think that she will probably get away with it and you are able to provide her with the grand prize she was after. At this point, I am not even sure if/when USCIS even looks into these cases.

 

Maybe it’s the heat, but I am starting to lose my faith that these (pretty obvious) cases of immigration fraud actually get noticed.. It just gets me down.. So many of us here had to jump through all the hoops and be patient in order to do this right, while others just play the system and get away with it.

 

I have no advice for you, you seem to be very aware of what is happening and no matter what we would tell you here, you will most likely continue with the process, so what do you want us to say really? Our remarks/questions will be answered with a “Yes, but…”, so we are not adding any real value here. Nobody here wil help you to justify what is happening..

Edited July 19, 2022 by Daphne K

[Family 3,988]

Just now, Generaltito said:

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.

Please do go for a consultation or two with a good immigration attorney before you give your nephew too much due and DO NOT have her leave .

She will be fine adjusting as IR ( immediate relatives) are forgiven both ULP and unauthorized employment and if she entered for a short visit but ended up staying, that is also not penalized. 
 

As for your house on fire romance , you will be right beside her at the interview to tell the officer you fell in love, were smitten and knew she was the one. Done . 
 

 

 

 

[arken 4,197]

Don't worry, just petition for her and go with AOS. She is already here, the CBP admitted her in. Case closed. Unless she signed a sworn statement in front of CBP that she will return back in 90 days, no issues. If you are truly in love, go with it. And don't worry about what she said at the CBP. All non immigrants will say they will return but plans change. What was in their mind beforehand, nobody can tell.

 

At least she got married and now will go through the AOS almost 1.5 yr after entering Us. There are lots of people who get married and go with AOS in the first few months of arrival on ESTA or B2 or other non immigrant visas. 

 

7 hours ago, Generaltito said:

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.

Let your nephew graduate and handle few related cases or have him join VJ for his projects or thesis on immigration cases and he will change his opinion and will say "yeah go for it, no worries, she doesn't need to return". Partial knowledge is dangerous.

 

 

Edited July 19, 2022 by arken

[davidvs 337]

Without getting too far into the weeds, 

 

Your nephew knows the letter of the law, but not necessarily the practice of the law.

 

Consult someone who has real world experience.

[Kai G. Llewellyn 837]

This does throw up a lot of red flags regarding marriage fraud I'm afraid. It seems like a textbook case of someone entering the US with no intent on going home and then seeking whatever way to obtain lawful status to remain. Now I'm not saying that's what's happening in your case, it just flies up a lot of red flags.

 

The case is messy, and misrepresenting her intent on entry is problematic. She can try to adjust status, most of the time it is a 'CBP admitted her case closed', but of course if she admitted to you that she lied on entry, and then lies again at the AoS interview then that is wilful misrepresentation. Will she be caught for it? Probably unlikely, but yes, we can't advise people to break the law here. So you can do whatever you like, but I'm formally not advising you/her to AoS in line with VJ's ToS.

 

It's kind of that case where if a person facing trial admits to their attorney that they are guilty, their attorney can no longer defend them as innocent because they know it not to be the case. Similar case here, that we know she misrepresented her intent on entry, we can't really help all that much here.

 

She could try and apply for a provisional unlawful presence waiver and then once approved, interview at a consulate abroad. But you have to demonstrate extreme hardship to yourself. That can be hard given that she's from an ESTA country which will likely be well developed and easier for a USC to move to.

 

Do bear in mind, given that she is an ESTA entrant to the US, she has no rights to see an immigration judge. If she's picked up by ICE or Border Patrol, then that's it, she's gone...barring a few exceptions. Of course if AoS is filed, then she'll be safe from that, but while out of status, she is most definitely at risk of being removed from the country swiftly.

[Generaltito 4]

50 minutes ago, Kai G. Llewellyn said:

This does throw up a lot of red flags regarding marriage fraud I'm afraid. It seems like a textbook case of someone entering the US with no intent on going home and then seeking whatever way to obtain lawful status to remain. Now I'm not saying that's what's happening in your case, it just flies up a lot of red flags.

 

The case is messy, and misrepresenting her intent on entry is problematic. She can try to adjust status, most of the time it is a 'CBP admitted her case closed', but of course if she admitted to you that she lied on entry, and then lies again at the AoS interview then that is wilful misrepresentation. Will she be caught for it? Probably unlikely, but yes, we can't advise people to break the law here. So you can do whatever you like, but I'm formally not advising you/her to AoS in line with VJ's ToS.

 

It's kind of that case where if a person facing trial admits to their attorney that they are guilty, their attorney can no longer defend them as innocent because they know it not to be the case. Similar case here, that we know she misrepresented her intent on entry, we can't really help all that much here.

 

She could try and apply for a provisional unlawful presence waiver and then once approved, interview at a consulate abroad. But you have to demonstrate extreme hardship to yourself. That can be hard given that she's from an ESTA country which will likely be well developed and easier for a USC to move to.

 

Do bear in mind, given that she is an ESTA entrant to the US, she has no rights to see an immigration judge. If she's picked up by ICE or Border Patrol, then that's it, she's gone...barring a few exceptions. Of course if AoS is filed, then she'll be safe from that, but while out of status, she is most definitely at risk of being removed from the country swiftly.

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.