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ESTA to Adjustment of Status

In this video/post I cover ESTA adjustment of status…

I received a call this week from a very nice woman who entered the US on ESTA as a visitor. She had no intention to remain in the US when she entered. But, her circumstances changed.

Her long time boyfriend proposed and they decided to get married. And now, she wants to file for adjustment of status to enable her to remain in the United States while the green card process is pending. She asked me if she was eligible for adjustment of status.

So, since a lot of people have this same question, I figured that it might be helpful to chat about this topic.

The first thing that you should know is that people who used ESTA to enter the United States are not eligible for adjustment of status UNLESS an immediate relative—who is also a US citizen—files an I-130 petition on their behalf. Only the following family members of a United States citizen will be considered an immediate relative: 

  • Spouses
  • Children under 21 and unmarried
  • Parents if the citizen is 21 years of age or older

So, adjustment of status is generally allowed when:

  1. You have a qualifying family member who is filing an I-130 petition on your behalf 
  2. You are applying within your ESTA validity period of 90 days

However, while you are considering an ESTA adjustment of status, you also have to consider the issue of immigrant intent…

esta to adjustment of status; no immigrant intent allowed

No Immigrant Intent Allowed

When someone enters the US on ESTA they are implicitly saying…trust me, I am just visiting. And I plan on going home after I visit your lovely country—within my 90 day period of authorized stay. 

If you enter on ESTA as a visitor, then apply for a green card, the government might question your intention at the time that you entered—and for good reason. You promised to simply visit, now you are saying that you want to be a permanent resident. 

If your circumstances changed, then adjustment of status could still be an option. But, if you planned to apply for a green card at the time that you entered the US, then you should immediately abandon that plan. You are not allowed to adjust status. And if the government notices signs that lead them to conclude that you misrepresented your intent, you could be accused of fraud and be permanently barred from the United States.

Alright, so applying for ESTA adjustment of status within 90 days comes with some risks, but it is possible. But, what if you want to apply after your 90 day period of authorized stay expires?

esta to adjustment of status; esta adjustment of status after an overstay

ESTA Adjustment of Status After an Overstay?

This is still possible, but you have to be careful. If any of these situations apply to your case, you will not be permitted to file for adjustment of status:

  • You have a prior deportation or removal order
  • You are under investigation related to public safety issue
  • There are security or fraud related issues in your case(for example, like we just covered, you are accused of misrepresenting your intent on ESTA)

Conclusion: ESTA To Adjustment of Status

So to sum it up, yes ESTA to Adjustment of Status is a possible path to a green card but there are some major hazards along the way. Therefore, I highly encourage you to proceed with caution and work with one of the many brillIant US immigration lawyers that you can find across the globe.

Thank you for your time and best of luck on your green card journey!

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Benjamin Frear, Esq.

Immigration Lawyer For Entrepreneurs and High Growth Companies

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