ESTA with adjustment of status to Legal Permanent Residency or K1 Visa

[rrtvisa 0]

I(US Citizen) met my girlfriend(Spain Citizen) while she was on a J1(Au Pair Visa) Visa. She left the U.S. and applied for a Student F1 Visa but was denied under 214b in December 2023. We believe it was due to her Au Pair host family being her visa sponsor and the Visa interviewer thought she would be going back to work with the host family even though she already payed her tuition. She did not put me as a sponsor because we heard that having a boyfriend as a sponsor would be reason for her to want to stay in the US. We are planning on her to come visit me with an ESTA(visa waiver program), but have seen conflicting statements online if it is possible for it to be approved or an automatic denial. If so, what can we do to improve the likelihood of the ESTA approved?

 

 I have also seen conflicting statements if I would then be able to ask my girlfriend to marry and get married once she is in the U.S. and do an adjustment of status to legal permanent residency during her ESTA stay.  Is this possible? or is our best bet to do a k1 visa?  Our main goal is to be together and to start living together in the U.S. The help is greatly appreciated as we both had so many plans to start our lives together and the timeline of a k1 visa is not helping our mindset. 

[Timona 4,208]

How do you pay for tuition before even jetting in the country? 

 

And her ESTA may be denied too. Best get married via zoom and apply for CR-1 

[appleblossom 2,803]

She can’t try to enter as a ‘visitor’ on ESTA if she actually intends to try and apply for AOS and stay. That’s immigration fraud. 
 

As said above, her ESTA may well be refused anyway with a denial on her record, so I’d plan to visit her instead, and apply for a spousal/fiance visa. 

[Daphne . 1,901]

Your plan to have her use her Esta to enter with the intent to adjust status is a big no-no. Maybe this was also why her F1 got denied, they suspected that she would use this non-immigrant visa with the intent to adjust status?

 

If she gets an Esta, she can visit you (at the discretion of CBP of course) and you might even get married, but have her leave the US after her visit and apply for the CR1. Or you can of course do the K1 if that’s what you prefer.

 

No easy shortcuts in Immigration, you will want to do this the right way.

Edited January 17 by Daphne .

[rrtvisa 0]

20 minutes ago, appleblossom said:

She can’t try to enter as a ‘visitor’ on ESTA if she actually intends to try and apply for AOS and stay. That’s immigration fraud. 
 

As said above, her ESTA may well be refused anyway with a denial on her record, so I’d plan to visit her instead, and apply for a spousal/fiance visa. 

Sorry, should have specified that she would not enter with the intention to try to apply for AOS, because she does not know yet that I would propose in the U.S. She would be using the ESTA to visit me. 

[rrtvisa 0]

21 minutes ago, Daphne . said:

Your plan to have her use her Esta to enter with the intent to adjust status is a big no-no. Maybe this was also why her F1 got denied, they suspected that she would use this non-immigrant visa with the intent to adjust status?

 

If she gets an Esta, she can visit you (at the discretion of CBP of course) and you might even get married, but have her leave the US after her visit and apply for the CR1. Or you can of course do the K1 if that’s what you prefer.

 

No easy shortcuts in Immigration, you will want to do this the right way.

To specify, it is not her intent to come to the U.S. to marry because she does not know I plan to propose. She would then adjust status, but  If that is still considered illegal or not possible please let me know. I plan to do things the correct and legal way. 

 

Unfortunately, its looking like our option is K1 with the ESTA more likely to be denied and CR1 having longer processing times compared to K1. 

[Daphne . 1,901]

6 minutes ago, rrtvisa said:

Sorry, should have specified that she would not enter with the intention to try to apply for AOS, because she does not know yet that I would propose in the U.S. She would be using the ESTA to visit me. 

Well, come on… You’re just going to ‘surprise’ her with this? Filing the adjustment of status means that she won’t be able to work or leave the US without authorization, that’s not a very nice surprise.. Don’t you think that this life changing thing should be discussed with her? 

You mention that the goal is to live together in the US, I assume that you both talked about this? 

[rrtvisa 0]

3 minutes ago, Daphne . said:

Well, come on… You’re just going to ‘surprise’ her with this? Filing the adjustment of status means that she won’t be able to work or leave the US without authorization, that’s not a very nice surprise.. Don’t you think that this life changing thing should be discussed with her? 

You mention that the goal is to live together in the US, I assume that you both talked about this? 

I understand your concern. The good thing is i have been dating my girlfriend for 2 years and know she would be okay with not being able to leave the country(she's done it before) or work as I am able to fully support her. Again, thank you for your concern, but I would not put her in a situation that I knew she did not want. 

[Daphne . 1,901]

12 minutes ago, rrtvisa said:

I understand your concern. The good thing is i have been dating my girlfriend for 2 years and know she would be okay with not being able to leave the country(she's done it before) or work as I am able to fully support her. Again, thank you for your concern, but I would not put her in a situation that I knew she did not want. 

So in that case the K1 would be the option, that should work then 👍🏻

 

We have the immigration guides here, so you can get familiar with the process. Good luck and hope it will be smooth sailing! 

[Ontarkie 14,305]

~~Moved to What Visa DO I Need, from K1 P&P - As the OP is just figuring things out.~~

[appleblossom 2,803]

35 minutes ago, rrtvisa said:

I understand your concern. The good thing is i have been dating my girlfriend for 2 years and know she would be okay with not being able to leave the country(she's done it before) or work as I am able to fully support her. Again, thank you for your concern, but I would not put her in a situation that I knew she did not want. 

I’m with Daphne on this, regardless of you thinking she’ll be ok without working etc, this isn’t a great idea. ‘Surprise darling, you didn’t get to say goodbye to family or friends, or wrap anything up in your own country, or bring all of your belongings, but we’re getting married quickly without your friends/family there…….oh and you can’t work or leave for ages even if you want to’. 
 

A weekend away, a thoughtful gift, maybe even a kitten - those are nice surprises. Getting married and moving to another country without being asked about it isn’t a nice surprise for most people, who want to have a say in their major life decisions. 
 

Of course all this will be moot if she can’t visit anyway, so I’d say she should apply for ESTA first (declaring the denial when asked) and see what happens. You can then take it from there and come up with a plan once you know if she can visit the US or not. 
 

Best of luck. 

Edited January 17 by appleblossom

[D-R-J 192]

What kind of work do you do? If it is something remote, I’d look into the digital nomad visa. That way you could wait out the visa processing time with your girlfriend in Spain. US immigration is not fast or convenient. If Spain based, you could also potentially try for direct consular filing, which is about as fast as US immigration gets. Anyways, another option to consider.

[garebear397 69]

 

8 hours ago, rrtvisa said:

Unfortunately, its looking like our option is K1 with the ESTA more likely to be denied and CR1 having longer processing times compared to K1. 

You can go ahead and try the ESTA, it takes like 5 mins online -- but I am fairly confident that a previously denied visa is pretty much an automatic rejection of ESTA (my wife got denied for an ESTA because she had a denied visa 10 years ago, and she had to get a B2 visa instead). Its an automatic system, as far as I know there is no physical person that will look at the situation. Basically the idea of the ESTA is that anyone that has no marks on their records (so to speak) can get it, and any situation that is somewhat irregular has to go through the normal visa process, where a physical person can evaluate the case. 

 

Also -- K-1s have maybe a very minimal faster processing speed than CR1 just to be able to enter the country, but the overall process to obtain greencard is longer with a K-1 and more costly, and as others have mentioned during AOS (adjustment of status) in the US you can't work or leave the country for often times 6 months or more. Most everyone in this forum who has experience is going to reccomend a CR1 over K-1. And I would say the same, being someone who has gone through the K-1 route once (succesfully) and is in process for the CR1 visa right now. 

[Crazy Cat 41,984]

9 hours ago, rrtvisa said:

ts looking like our option is K1 with the ESTA more likely to be denied and CR1 having longer processing times compared to K1. 

The processing times are not much different.  You might want to see this, as many of us here believe that a CR-1 is a better option:

Every couple has their own priorities, and each couple must decide which visa is better for their situation.

K-1 
  More expensive than CR-1
  Requires Adjustment of Status after marriage (expensive and requires a lot of paperwork)
  Spouse can not leave the US until she/he receives approved Advance Parole (approx 6-8 months) 
  Spouse can not work until she/he receives EAD (approx 6-8 months) 
  Some people have had problems with driver licenses, Social Security cards, leases, bank account during this period 
  Spouse will not receive Green Card for many months after Adjustment of Status is filed.
  A K-1 might be a better choice when 18-21 year old children are immigrating also
  In some situations, marriage can affect certain Home country benefits, making a K-1 a better choice 
  A denied K-1 is sent back to USCIS to expire
  K-1 entrant cannot file for citizenship until after having Green Card for 3 years.
  Once an I-129F has been approved, delaying the case is difficult to impossible if the need arises.

CR-1/IR-1
  Less expensive than K-1 
  No Adjustment of Status(I-485, I-131, I-765) required. 
  Spouse can immediately travel outside the US 
  Spouse is authorized to work immediately upon arrival. 
  Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US 
  Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.
  Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.
  The clock for citizenship filing starts immediately upon entry to the US.
  A CR-1/IR-1 case can be delayed indefinitely at NVC if the need arises. 
   

 

 

Edited January 17 by Crazy Cat

[Family 4,065]

14 hours ago, rrtvisa said:

She did not put me as a sponsor because we heard that having a boyfriend

Let’s not beat around the bush…so to speak . 
You dated for 2 years while she was on J1 and you want to live together, as a couple . 
She did not disclose having a USC boyfriend at F-1 interview…BY CHOICE….because you both knew that would be a problem. ..and the long term goal is live together in US.

Not worth splitting hairs on sponsor/boyfriend..same red flag.

 

If she did a great job at evading the boyfriend issue at F-1 interview..perhaps they denied cause she sought another visa too quickly ( assuming here no 2 year home stay ) or they peeked at her past social media . 
 

With all the immigration law knowledge you have gathered ..what do YOU think either Consulate or CBP would do if she truthfully discloses the “ purpose of visit “? 
 

Personally , I think ESTA will be rejected .. even if it approved she would risk a strong arm encounter w CBP ..where IF she tells the truth they will  send her home 

 

https://esta-center.com/en/refusal/index.html#refusal2
The most common reasons for rejection of ESTA application

• In the past, applied for VISA or ESTA and it had been rejected.