AOS on ESTA sponsored by Green Card holder

[gorcork22 0]

 

Hi everyone,

 

I (Green Card holder) have been trying to find a post regarding this but unfortunately I am full of uncertainty about it, so I will try to summarize my situation.

 

3 weeks ago my Fiancée entered the US with an ESTA to see me for 2 weeks as a vacation plan, given that her current job is not allowing her to have any more PTO.  She previously visited me 5 months ago and I did 1 month ago on Germany too (She's German, I am originally French), we agreed on redistributing our PTO allowance to visit each other while the other remains working at home to keep us company for the most time possible. We've been long-distance and engaged for 6 months. We know each other from more than a year ago through an online game.

 

It's come to a point which I had to ask her the day before she left to please not take the flight back to Germany and to stay with me a bit more, the anxiety and pain from being able to share two weeks together to later have a period of 2 months on my own repeatedly for years is affecting me heavily, she also broke down completely, and agreed to stay despite the consequences with her job and residency back in Germany.

 

She is currently with me, and on an ESTA she would need to return before the 90th day. I've been looking ever since this event to get as much knowledge as possible to go through the most efficient route for forming a life together here in USA.

I've seen that it is possible to file for an I-485 with an I-130, however in the guide post, it is mentioned on the

Assembling the I-130 Package: Checklist that you need

4.     Copy of the Full Birth certificate (front and back) for the US Citizen or a copy of ALL pages of the US Citizen's passport. This is used to establish citizenship.

 

Which on my eyes mean that it's mandatory to be a US citizen for filing I-130... However on the government webpage I-130 USCIS, the checklist includes

 

Evidence of U.S. citizenship, lawful permanent residence, or U.S. national status

 

and this can be used as evidence: 

A copy of the front and back of your Permanent Resident Card (also known as a Green Card or a Form I-551).

 

Can someone help me understand if I'm in the wrong, and I need to go through naturalization first (which I am 4 months away from filing and 10 months away from getting, depending on the processing times), or if this option is completely valid for us to follow even if I am just a Green Card holder?

 

Would I need an inmigration lawyer for this case?

Is there any recommendation/anything I am missing out?

 

Thank you

[Boiler 45,428]

Problem is she is on the VWP and not an immediate relative, well my first thought

 

From recollection you need to be a USC

[gorcork22 0]

So, she would qualify as immediate relative if we get married now?

[Boiler 45,428]

I need to check and I can not now, I know F2a is only current until the end of the month

[powerpuff 6,667]

44 minutes ago, gorcork22 said:

So, she would qualify as immediate relative if we get married now?

The issue is that spouses and children of LPRs (which is category F2A) are, by law, numerically limited (in contrast with immediate relatives of US citizens which do not have such limitations and can get visas/AOS at any time). For the past several years the dates were “current” for F2As meaning they could apply for visas or adjust status right away. Starting September 1, it is no longer the case for adjustment of status applications. Please see the post below, it might help clear it up further:

 

[powerpuff 6,667]

This is also the time to get very well acquainted with the visa bulletin which dictates when visa numbers as available. AOS would refer to table B. See the VB for august and September:

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-august-2023.html
 

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-september-2023.html

[Chancy 6,241]

1 hour ago, gorcork22 said:

Can someone help me understand if I'm in the wrong, and I need to go through naturalization first (which I am 4 months away from filing and 10 months away from getting, depending on the processing times), or if this option is completely valid for us to follow even if I am just a Green Card holder?

 

Not an option for spouse of GC holder.  Your fiancee cannot adjust status while in the US on VWP/ESTA, even if you get married today.

 

From https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7 -- "A noncitizen admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status.[...] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants."

 

Regardless, if you are ready to get married now, go ahead and do so while your fiancee is in the US.  You may file an I-130 for her after you have a valid marriage certificate.  Then she should leave before her 90 days on ESTA are up.  She may visit the US again, even while the I-130/F2A case is pending, subject to CBP inspection as usual.

 

Also, I recommend you apply for naturalization soon after you are eligible.  Once you become a US citizen, you may request for your spouse's visa case to be upgraded to IR1 (spouse of USC).  That way, the visa bulletin will be irrelevant to her case, and she can be in line for visa interview soon after I-130 approval and NVC review.  At least, much sooner than if her case remains under F2A (spouse of LPR).

 

[powerpuff 6,667]

11 minutes ago, Chancy said:

 

From https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7 -- "A noncitizen admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status.[...] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants."

I learned something new today 

 

11 minutes ago, Chancy said:

Regardless, if you are ready to get married now, go ahead and do so while your fiancee is in the US.  You may file an I-130 for her after you have a valid marriage certificate.  Then she should leave before her 90 days on ESTA are up.  She may visit the US again, even while the I-130/F2A case is pending, subject to CBP inspection as usual.

This is the best course of action.  It is crucial that she leaves before the 90 days to prevent an overstay and not jeopardize her ability to visit while I-130 is pending.

[Boiler 45,428]

4 hours ago, gorcork22 said:

So, she would qualify as immediate relative if we get married now?

The spouse of a Green Card holder is not an immediate relative.

 

A spouse of a US Citizen is.

 

I would not stay 90 days, they tend to get over focussed on entrants who have long visits in the recent past, and a small delay and no more VWP.

[Demise 1,276]

19 hours ago, gorcork22 said:

 

Hi everyone,

 

I (Green Card holder) have been trying to find a post regarding this but unfortunately I am full of uncertainty about it, so I will try to summarize my situation.

 

3 weeks ago my Fiancée entered the US with an ESTA to see me for 2 weeks as a vacation plan, given that her current job is not allowing her to have any more PTO.  She previously visited me 5 months ago and I did 1 month ago on Germany too (She's German, I am originally French), we agreed on redistributing our PTO allowance to visit each other while the other remains working at home to keep us company for the most time possible. We've been long-distance and engaged for 6 months. We know each other from more than a year ago through an online game.

 

It's come to a point which I had to ask her the day before she left to please not take the flight back to Germany and to stay with me a bit more, the anxiety and pain from being able to share two weeks together to later have a period of 2 months on my own repeatedly for years is affecting me heavily, she also broke down completely, and agreed to stay despite the consequences with her job and residency back in Germany.

 

She is currently with me, and on an ESTA she would need to return before the 90th day. I've been looking ever since this event to get as much knowledge as possible to go through the most efficient route for forming a life together here in USA.

I've seen that it is possible to file for an I-485 with an I-130, however in the guide post, it is mentioned on the

Assembling the I-130 Package: Checklist that you need

4.     Copy of the Full Birth certificate (front and back) for the US Citizen or a copy of ALL pages of the US Citizen's passport. This is used to establish citizenship.

 

Which on my eyes mean that it's mandatory to be a US citizen for filing I-130... However on the government webpage I-130 USCIS, the checklist includes

 

Evidence of U.S. citizenship, lawful permanent residence, or U.S. national status

 

and this can be used as evidence: 

A copy of the front and back of your Permanent Resident Card (also known as a Green Card or a Form I-551).

 

Can someone help me understand if I'm in the wrong, and I need to go through naturalization first (which I am 4 months away from filing and 10 months away from getting, depending on the processing times), or if this option is completely valid for us to follow even if I am just a Green Card holder?

 

Would I need an inmigration lawyer for this case?

Is there any recommendation/anything I am missing out?

 

Thank you

For sponsoring you need proof of citizenship or permanent residency. Green card is it. After you naturalize it'll be your naturalization certificate or a US passport.

Birth certificate is not required from the sponsor unless it's used to establish relationship (i.e. you are sponsoring a parent or a sibling).

 

That being said, F2A (spouses of permanent residents) can't adjust after entry on ESTA/VWP. You'd need to naturalize first before she'd be eligible to adjust. I also don't recommend entering with the intent to adjust (as that's immigration fraud) or overstaying (as that's another issue runs awry of the law and this site's TOS).

 

Get married, file I-130 for her, when you naturalize let the service center know to upgrade her to IR and have her do consular interview for an immigrant visa. Don't try to be more clever than you are, thousands before you got burnt like this and thousands after you will as well.

Edited August 16, 2023 by Demise