If I’m a U.S. citizen and my wife is currently here under the ESTA waiver program, is it advisable to apply for green card while under this program?

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If I’m a U.S. citizen and my wife is currently here under the ESTA waiver program, is it advisable to apply for green card while under this program?

We were married outside of the U.S. and were traveling. We stayed in Hawaii under the ESTA program for almost 90 days for a short-term program they provided documentation and then left for Israel for about 2 weeks and returned to the U.S. Upon arrival, we did not have a round trip ticket and immigration interviewed my wife regarding her intention of coming to the U.S. again so soon and also without a round trip ticket. Since our intention at the time was in no way to immigrate to the U.S, my wife explained to the immigration officer with her round trip ticket to Scotland from South Korea in July that her intention is not to immigrate or stay illegally in the U.S. The previous intention that she communicated was to visit family members in the U.S. and as for not having the round trip ticket, she explained that our plans had already had to change several times before and that we just went with what felt affordable at the moment. At that point, the officer seemed to document everything that she was saying. However, as we were just traveling certain circumstances changed and we are

considering immigration now. We’ve currently been in the U.S. for about 40 days. We are wondering if there is any risk for getting rejected in the green card application due to the way we originally entered? We heard that there is a process called Waiver of Misrepresentation that might cover our case, and we were also wondering how valid that option is as well?

Asked on May 15, 2018 under Immigration Law, Hawaii

Answers:

SB Member California Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

If you wait about 90 days after the last entry, that would be fine for filing for adjustment of status despite the entry as 90 days is seen as a safe harbor for changing one's intent, so to speak.  However, you should be prepared to discuss at the interview, the changing circumstances as to why you decided to file for adjustment of status wtihin the US after that 90 day period.


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