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Can I get a green card if I am on ESTA?

Can I get a green card if I am on ESTA?

ESTA stands for Electronic System for Travel Authorization and is a visa waiver program for eligible individuals from certain countries. When someone enters the United States on an ESTA or “visa waiver,” they agree to waive certain rights and agree to leave the United States within 90 days from the date of entry.

ESTA Limitations

Some of the limitations when entering the United States on ESTA is that you cannot file for a change of status or extension of status. In some circumstances, your rights in removal proceedings are substantially limited, for example, you can only seek relief from immigration court in the form of withholding of removal and asylum. Courts have held that you cannot seek adjustment of status in immigration court if you entered on ESTA.[1]

Adjustment of Status on ESTA

There is a lot of confusion regarding whether one is eligible to adjust status if they enter the United States through a visa waiver program or ESTA. Adjustment of status is the process whereby someone converts their current immigration status to that of a lawful permanent resident of the United States, also known as obtaining a “green card”. The answer to this question is not straight forward, and requires both a legal and factual inquiry into the circumstances of the case. Generally, however, adjustment of status is allowed for immediate relatives who enter the United States on ESTA, so long as they did not make any misrepresentation or have fraudulent intent at the time of entering the United States. What amounts to a misrepresentation or fraudulent intent is the more complex issue.

What is Fraudulent Intent or Preconceived Intent in Immigration?

Preconceived intent is entering the United States on a temporary visa, knowing that later you will apply for adjustment of status to obtain a green card and stay permanently. This can be problematic because you entered on a tourist visa, indicating a temporary stay, but intended something else: permanent residency. This dishonesty is problematic. However, because adjustment of status is discretionary, other factors can be considered as well. Generally, however, preconceived intent alone is not sufficient to bar adjustment of status.[2]

What is the 30/60/90 Day Rule?

The 30 / 60 / 90 Day Day Rule is not a rule, it is a rule of thumb. It is also not a guarantee. Generally, however, immigration lawyers advise that if the client entered the United States on a visa, like an ESTA, B1/B2 or other non-immigrant visa, they should wait. Waiting for longer periods of time, between thirty to ninety days, makes it more difficult for USCIS to accuse you of preconceived intent. Intentions can change over time and are generally difficult to prove—therefore, it is advisable to wait before applying for any immigration benefit, such as a green card, until you speak with an immigration attorney.

Immigration Misrepresentation

Immigration misrepresentation should not be confused with preconceived intent. It is important to note that preconceived intent is not the same as misrepresentation in immigration law. Misrepresentation in immigration law comes with greater consequences. Some people, for example, fail to list their spouse or children, or truthfully complete their ESTA form, hiding criminal issues, for example. Years later, this can come back to haunt them. A finding of immigration misrepresentation can bar you from the United States.

Conclusion

The adjustment of status, or green card process, is a complicated one. Many have spent years untangling a mess that could have easily been avoided if they simply consulted an immigration attorney. If you entered the United States on any visa, or a visa waiver like ESTA, seek the counsel of a skilled immigration attorney to guide you through this process.

 

[1] Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Mar. 31, 2008) (persons who entered the United States under the Visa Waiver Program, who marry and apply for Adjustment of Status after their 90 days have elapsed, cannot obtain removal proceedings before being removed, and are ineligible to adjust status), distinguishing Freeman v. Gonzales, 1444 F.3d 1031 (9th Cir. 2006).

[2] Matter of Cavazos, BIA Jan. 1980

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