Traveling into US with ESTA and applying for Green Card

[MrDellimore 0]

Hello All,

 

My wife and I have been married for two year and just gave birth to our first child 6 months ago.
 

My wife is Australian and has entered the US several times with an ESTA since 2017. During the pandemic she overstayed for over a year, but she was able to apply for an ESTA and visit the US last year. Not sure if her overstay will effect her green card application if she was still able to get an ESTA. 
 

We currently reside in Malaysia where we gave birth to our daughter, but next week we are planning to visit the states while I start a new job. We are planning to stay for maybe 8 months and I have been looking into applying for a green card to avoid any future travel issues. Otherwise we would have to make visa runs to reset the ESTA. With a child this is not ideal for us. 
 

Is it possible to apply for the green card once we arrive under an ESTA? Also how long would we have to reside in the US? I am looking into using a service like simple citizen to get some support with organizing the documents since I feel like my situation more complex and I can’t afford a lawyer.
 

We intended to go back to Malaysia to visit after about 8 months. Our goal is to have the freedom to stay in Malaysia and US free. Thanks for any advice on the matter!

Edited February 9 by MrDellimore

[Dashinka 24,493]

It is not legal to enter the U.S. on a B2/ESTA with the intent to stay and adjust status.  If she was already in the U.S. that would be a different story.

 

Good Luck!

[Daphne . 1,853]

Your plan is not going to work. First of all, she was very lucky to get a new Esta after an overstay, but CBP will deny her entry when you all show up at the border and CBP asks about the purpose of the visit and how long she will stay (these are standard questions). She can’t stay on an Esta for 8 months and she also can’t use her Esta to enter with the intent to adjust status. 
 

Since you start a new job, ask the Embassy if your case qualifies for Direct Consular Filing. 

[Dashinka 24,493]

I agree with @Daphne ., if you have a job offer forcing you to repatriate, attempt the DCF in Malaysia right now.  It is much faster, and cleaner and does not require any obfuscations with CBP when they ask your wife what her intentions are in the U.S. and how long she intends to stay.  DCF can be do it yourself.

Here is a recent detailed story of the DCF process.

 

Good Luck!

[Redro 4,611]

I want to add… she might get hit with misrepresentation if she enters and adjusts on ESTA as she really shouldn’t have ESTA after the overstay. Getting the immigration visa through consulate should avoid issues of misrepresentation. I advise you consult with a lawyer if you’re so keen to go this route. 

Edited February 9 by Redro

[Rocio0010 5,579]

1 hour ago, MrDellimore said:

legal intention

What does that mean?  
You’re lucky she got another ESTA after her overstay. 
The ESTA is not a visa to come and go as she pleases. 

If that’s the plan, you might just was well file for CR-1 or DCF and have her come a resident first and citizen thereafter.

[Boiler 45,486]

I can see this ending in tears for multiple reasons but I am not sure the OP is interested in listening.

 

VWP seems the bigger issue

 

Quote

 Travelers who have been arrested, even if the arrest did not result in a criminal conviction, those with criminal records, (the Rehabilitation of Offenders Act does not apply to U.S. visa law), certain serious communicable illnesses, those who have been refused admission into, or have been deported from, the United States, or have previously overstayed on the VWP are not eligible to travel visa free under the Visa Waiver Program;

 

Visa runs well they will end in tears. Likewise being a LPR means you are a permanent resident of the US.

[Crazy Cat 41,845]

3 hours ago, MrDellimore said:

Is it possible to apply for the green card once we arrive under an ESTA?

Not legal.

[Crazy Cat 41,845]

*** One comment which borders on violation of Visa Journey's TOS and several quotes have been removed******This topic is now locked.  OP's question about applying for a Green Card after arriving via VWP has been answered. ******  Do not ask this question again in any way*** This topic thread remains posted for educational purposes***

Members are not allowed to:

"Condone or instruct, either directly or indirectly, others on how to commit fraudulent or illegal immigration activities in any way, shape, manner or method."

Edited February 9 by Crazy Cat

[millefleur 5,046]

12 hours ago, Dashinka said:

if you have a job offer forcing you to repatriate, attempt the DCF in Malaysia right now.  It is much faster, and cleaner and does not require any obfuscations with CBP when they ask your wife what her intentions are in the U.S. and how long she intends to stay.  DCF can be do it yourself.

Seconding this. DCF would be the easiest way for sure, it's worth reaching out to the embassy with your job offer to see if they will approve you.

 

14 hours ago, MrDellimore said:

We intended to go back to Malaysia to visit after about 8 months. Our goal is to have the freedom to stay in Malaysia and US free.

To have complete freedom of movement, she'll need to get US citizenship for that. A green card is not for living in two countries 50/50, but for living in the US full time as a permanent resident. 

 

Visa runs to reset ESTA sounds like a horrible idea. We've seen it time and time again here on VJ people who use ESTA too much are barred from entering the US and have ESTA revoked.