Applying for Adjustment of Status with an ESTA Entry
While visiting her partner in the U.S. on an ESTA (Electronic System for Travel Authorization), Emma, a graphic designer from France, found herself enveloped in the surprise of a lifetime when, during a sunset walk along the Golden Gate Bridge, her American partner, Alex, knelt down with a ring. Amid the joy of her engagement, Emma faced a swirl of uncertainty about her future in the U.S. Could she adjust her status and embark on her new life without returning to France? The possibility of navigating the complex immigration system seemed daunting, especially under the restrictions of the ESTA/Visa Waiver Program, leaving her to wonder about the next steps on the path to her American dream.
Emma’s situation is a common one, so let's delve into the details. Initially, it's important to note that those who enter the U.S. under ESTA are typically not permitted to adjust their status. This is unless a U.S. citizen immediate relative submits an I-130 petition for them. Immediate relatives in this context are:
Spouses of U.S. Citizens
Unmarried children under 21 of U.S. Citizens
Parents of U.S. Citizens, provided the U.S. citizen is at least 21 years old
Under the right circumstances, such as having an immediate relative petition for you and remaining within the 90-day window of your ESTA authorization, adjustment of status is possible with the right preparation.
However, this process is not without its intricacies, especially concerning the principle of 'nonimmigrant intent.' When a person enters the U.S. with an ESTA, it is based on the understanding that the visit is temporary, accompanied by a representation and commitment to depart within 90 days. If a visitor then seeks permanent residency, this could raise questions about their true intentions upon entry, and any hint of prior intent to immigrate can be problematic, leading to allegations of misrepresentation or fraud, and severe penalties, including a permanent ban.
Even if the decision to adjust status was made after entry, and if it’s within the 90-day window, the process can be risky if the case is not prepared properly. And what if the 90-day period has expired? There's still a pathway, albeit a narrow one, and it's closed off entirely if you've overstayed under circumstances such as having a deportation order, being under investigation, or having security or fraud concerns related to your case.
Those in Emma’s situation also often wonder whether applying for an adjustment of status extends their lawful stay in the U.S. if their ESTA expires. Filing for an adjustment of status does not extend your ESTA validity, but it does allow you to remain in the U.S. while your application is being processed. Once you file for adjustment of status, you are typically in a period of authorized stay by the Attorney General, and although you are not technically in a lawful nonimmigrant status, you are not accruing unlawful presence. However, if your application is denied, you could be found to have been unlawfully present from the date your ESTA expired.
In summary, transitioning from ESTA to adjustment of status is fraught with challenges and requires careful navigation, but it certainly is possible. We have filed hundreds of successful cases with the facts mentioned above. Our advice is to proceed with utmost caution and consider enlisting the expertise of a skilled U.S. immigration attorney, who can guide you through the complexities and help avoid the pitfalls that could jeopardize your journey to permanent residency. Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.