ESTA To AOS Potential Problem?

[Generaltito 4]

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. 

[BLC 112]

Fraud due to lying to CBP is the real issue here. I think that will be the biggest factor, whether you apply for AOS in the US or she leaves and you petition the CR1 —you seem to be in the same boat, either way, in the sense that she committed fraud against USA. You should really find an attorney who specializes in overstays and AOS, as they are going to have all the relevant experience that you guys need. I have a feeling AOS within the country is going to probably be the better choice between the two. 

[BLC 112]

On 7/20/2022 at 10:10 PM, Generaltito said:

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. 

You might want to hop on Jim Hacking’s website (he is an immigration attorney and has a firm dedicated to it). He also does semi-daily live question/answer sessions on YouTube and he provides really great info and seems to be honest and just lays it out there…so you can start there and ask him a question on his show. He can also practice law throughout the country, so if it turns out you like him, all the better. 

[Joey007 6]

On 7/19/2022 at 1:35 AM, 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!

I think you  are over thinking this issue. Lots of immigrants come in to this country as visitors, crewmen or tourists and end up staying. She is now legally  married and the marriage covers her. Go ahead with all your filings and worry not. The issues you are completely worried about and discussing with a student lawyer is just exacerbating what to me is a non issue. File for her and STOP discussing with unqualified legal personnel. Stand by her throughout the whole process. From your story I can tell you that she is genuine. Do not miss a good woman by your indecisiveness and double mind. 

[DeniseL 13]

Wow, this is a real big mess of a case.

 

I could give you the name of our attorney.

He is amazing and tells you what is possible and what not. If its worth fighting for or not. And thats because he wants the best outcome for the client, not just taking on the case for money (which would be a waste of work/time for him as well if not positive).

 

But I feel like lately these kind of cases just get away with everything. Well at least similar.

We are all trying to apply for it the correct way, waiting and waiting for each step and its a hell of a journey.

 

 

[caliliving 606]

Omg this is not a messy case!!! Don’t over think it and talk to a competent lawyer

 

she was allowed at POE. They let her in. She overstayed people do it all the time!!! My friend overstayed 10 years! It did not come up at the interview you n ow why? Because overstaying a visitor visa and getting married is not grounds for denial!!

they won’t even ask her how she is supporting herself.

 

now is she using you for a greencard? That is a completely different story! 
 

if you love her just fill out the paperwork - all will work out! 

[Chinonso 0]

On 7/19/2022 at 6:35 AM, 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!

I think you shouldn’t lose faith,Nothing is impossible for God bro

 

just do the right thing and leave it all to God🫶🍀

[Family 3,988]

On 7/18/2022 at 10:35 PM, 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:

Sometimes between the original post and yesterday, through DM s here on VJ, it seems : 

 

1. The nephew “ in his third year at University “ has “ graduated top of his class at Harvard” 

2. The wife earned a University degree in a different country / continent, not “ back home” ..

 

3. Some explosive revelations in the last 48 hours 

 

4. It was apparently “ 6:04 PM “ and dinner time  in Paris at some point yesterday. 
 

In the spirit of VJ of Long Ago Mr Fancypants and modern day Do Gooder @Loren Y, I broke anonymity and offered my tel and location ( all the while imagining the poor wife crying in distress and husband unable to console her fears …even after 4 bloody attorney consults)….

 

Lets just say, the bits and pieces are quite scattered , colorful and I have learned a lesson….but I did enjoy refusing “ payment “ for my pearls of wisdom. 

 

 

 

 

[SalishSea 17,828]

On 7/20/2022 at 6:46 PM, arken said:

This simply tells that lawyer is not incompetent. Comparing your case to one similar case is fruitless. You should've pointed that lawyer to this forum. She would have found lots of cases with successful outcome. 

As the OP pointed out, it is not as common to overstay and THEN meet someone.

 

Not sure why you think it is uncommon for lawyers to research  similar cases, but it happens all the time.  Even USCIS uses precedent cases as a basis for adjudication.

[TabeaK 517]

Sheesh, I am glad I DIY'ed my admittedly simple visa journey, when I hear these attorney consults - you know, back in my day attorneys would also tell you that you should not travel on an advance parole or cannot travel while you have a visa pending. Utter BS, most of it.

 

Do you love & trust your wife and want to live with her in the US? File the damn AOS paperwork, gather evidence for a bonafide marriage between now and the inevitable AOS interview (do not forget to file for travel/work permits with the AOS) and stop overthinking. By virtue of being married to you she is now an immediate relative of a US citizen - intent, impossible to prove misrepresentation and all these other heresay issues nonwithstanding. 

 

Do you mistrust your wife and think she is trying to use you for a green card? Divorce and move on.

 

It is really not that complicated.

 

[EM_Vandaveer 2,408]

I'm a little flabbergasted about the whole freaking out over the situation. Maybe it's not the simplest case but it does feel to me that the lawyers are scaring you beyond what's reasonable as a way to get your business. (If you decide to file, you can do it on your own.)

If your wife is fine with moving to Europe then you have nothing to lose by filing for AOS. If it's denied, pack up & leave....

If it's approved, good for you.

[GEOntificator 281]

- Overstay is forgiven for USC spouses

- She can stay and adjust no problem. File I-130 and I-485 together asap.

- I doubt the USCIS will give her much trouble

 

Just being honest here. 

 

[caliliving 606]

On 7/19/2022 at 1:22 PM, Generaltito said:

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.

Omfg you are fine!!  I did both - overstayed and worked unauthorized and guess what? Nothing. came up at the interview bc it is a non issue!! They didn’t even ask me about my overstay or unauthorized (illegal?) work. 
 

Regardless if she had bo intention to leave it does not matter!!! If you want more info Dm me!!

 

she 100% has an easy case - not a messy case! File the paperwork and all is well! 

25 minutes ago, kvito28 said:

- Overstay is forgiven for USC spouses

- She can stay and adjust no problem. File I-130 and I-485 together asap.

- I doubt the USCIS will give her much trouble

 

Just being honest here. 

 

100% this!!

[B&DT 5]

Too many personal opinions in this thread.

This document explicit says you can seek Aos on esta if you immediate relative ..even if you overstayed !!!

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

[Mike E 11,739]

51 minutes ago, B&DT said:

Too many personal opinions in this thread.

This document explicit says you can seek Aos on esta if you immediate relative ..even if you overstayed !!!

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

Read 

 carefully.and ask yourself  what @Family was implying in that comment.