Visa Waiver Program Adjustment of Status Marriage

The U.S. Visa Waiver Program (VWP) provides an opportunity for nationals from specific countries to enter the United States without a visa for short-term stays (up to 90 days). The primary purpose of this program is for tourism, business, or transit. However, an important question arises for individuals entering the U.S. under the VWP who may later find themselves in a situation where they wish to adjust their status due to a marriage to a U.S. citizen or a lawful permanent resident. In such cases, applying for adjustment of status (AOS) can be a path to becoming a permanent resident of the United States.

In this article, we will explore the implications of adjustment of status through marriage for individuals who entered the U.S. under the Visa Waiver Program. We will discuss eligibility, requirements, the process, and important considerations for those navigating this route to permanent residency.

What is the Visa Waiver Program?

The Visa Waiver Program (VWP) allows citizens of designated countries to enter the U.S. for tourism, business, or transit purposes without applying for a visa. The stay is typically limited to 90 days. To take advantage of the VWP, travelers must obtain approval through the Electronic System for Travel Authorization (ESTA) before boarding their flight.

While the VWP simplifies the entry process for short-term visitors, it is important to note that it is specifically intended for temporary stays. The intention to enter the U.S. on the VWP is not meant to facilitate immigration, but in some cases, individuals find themselves in a position where they wish to change their status after entering the country.

What is Adjustment of Status (AOS)?

Adjustment of Status (AOS) refers to the process by which a foreign national who is already in the United States changes their immigration status to that of a lawful permanent resident (green card holder) without having to leave the country. This process typically involves submitting an application to U.S. Citizenship and Immigration Services (USCIS), attending an interview, and providing supporting documentation.

For individuals who marry a U.S. citizen or a lawful permanent resident, applying for AOS based on that marriage allows the foreign national to transition from their current status (e.g., visitor or temporary nonimmigrant) to a permanent resident. This process is a common way for individuals to gain lawful permanent residency after entering the U.S. legally on a nonimmigrant status.

Visa Waiver Program and Adjustment of Status Through Marriage

The process of adjustment of status through marriage is possible for individuals who entered the U.S. on the Visa Waiver Program (VWP). However, the path is not straightforward, and there are several important factors to consider.

1. Eligibility for Adjustment of Status After Marriage

When an individual who entered the U.S. under the VWP marries a U.S. citizen or lawful permanent resident, they may be eligible for adjustment of status to become a permanent resident. The key factor in this situation is the legality of the marriage and the genuine intent of the individual at the time of entry.

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• Marriage to a U.S. Citizen: If you marry a U.S. citizen, you can apply for adjustment of status through marriage. This is one of the most common routes to obtaining a green card. U.S. citizens can sponsor their foreign spouse for permanent residency.

• Marriage to a Lawful Permanent Resident: If you marry a lawful permanent resident (green card holder), you can also apply for adjustment of status, but the process may take longer, as there are limited visa numbers available for spouses of permanent residents.

2. Intent at the Time of Entry

The intent at the time of entry is one of the most critical factors when it comes to adjustment of status for those entering on the VWP. Under the Visa Waiver Program, travelers are required to have the intent to stay temporarily in the U.S. (for tourism or business) and are expected to leave the U.S. within the 90-day period.

If you entered the U.S. on the VWP with the intention of marrying a U.S. citizen or permanent resident and adjusting your status, this could be viewed as misrepresentation of intent. This may raise issues with USCIS during the adjustment process, and your application could be denied. However, if the marriage occurred after entering the U.S. and the intention to marry was not preplanned, you may still be eligible to adjust your status.

It is important to demonstrate that you did not enter the U.S. with the preconceived intent to marry and adjust your status. If you are found to have entered the U.S. with immigrant intent, you may face difficulties in your AOS application, including the possibility of being barred from applying for a green card for a period of time.

3. The Process of Adjustment of Status Through Marriage

The process for adjustment of status through marriage involves several steps, and it is essential to understand the requirements to ensure a smooth process. Here is an overview of the typical steps involved:

1. Marriage to a U.S. Citizen or Lawful Permanent Resident: The first step is to marry your U.S. citizen or permanent resident spouse. The marriage must be legally recognized, and the relationship must be bona fide (genuine).

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2. File Form I-130 (Petition for Alien Relative): The U.S. citizen or lawful permanent resident spouse must file Form I-130, which is a petition to establish the marital relationship and prove that the marriage is genuine. This form is required for both spouses to proceed with the AOS process.

3. File Form I-485 (Application to Register Permanent Residence or Adjust Status): Once the I-130 petition is approved, the foreign spouse can file Form I-485 to apply for a green card. This form allows the individual to adjust their status while remaining in the U.S.

4. Attend Biometrics Appointment: The foreign spouse will be required to attend a biometrics appointment to have their fingerprints, photograph, and signature taken for a background check.

5. Attend Interview: In most cases, USCIS will schedule an interview for the couple to confirm the validity of the marriage and the applicant's eligibility for a green card. The interview typically includes questions about the relationship and the applicant’s background.

6. Receive Green Card: If USCIS approves the AOS application, the foreign spouse will be granted lawful permanent resident status (a green card). If the marriage is less than two years old at the time of approval, the foreign spouse will receive a conditional green card, which is valid for two years. After two years, the couple must file to remove the conditions on the green card.

4. Challenges and Considerations

While adjustment of status through marriage is a viable path for those who entered the U.S. under the VWP, there are several important challenges and considerations:

• Preconceived Intent: As mentioned earlier, USCIS will scrutinize whether you entered the U.S. with the intent to marry and adjust your status. Be prepared to provide evidence that the marriage was not pre-planned at the time of entry.

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• Overstaying the 90-Day Period: If you overstay the 90-day period under the VWP while waiting for your AOS application to be processed, this could result in complications. It’s important to ensure that you file your AOS application within the 90-day period.

• Approval and Processing Delays: The adjustment of status process can take several months or even years, depending on various factors, including the service center processing times, the applicant’s background, and whether additional documentation is required.

Conclusion

The Visa Waiver Program allows travelers to enter the U.S. for short stays without a visa, but it does not automatically grant the right to adjust status while in the U.S. However, if you marry a U.S. citizen or lawful permanent resident, you may be eligible to apply for adjustment of status. The process is complex and requires careful attention to the rules governing entry, intent, and the adjustment process.

If you're considering adjusting your status through marriage, it's essential to consult with an immigration attorney to navigate the process and ensure that all requirements are met.

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