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Falling in Love On the Visa Waiver Program: Is a Green Card Even Possible?
Feb 18, 2016

By: Jennifer Fabian-Verzosa, Esq

It’s only human to fall in love, but what if you want to marry a foreign national who comes from a country on the Visa Waiver Program? Is your love eligible for Adjustment of Status? How about a fiancé petition and visa?

The Visa Waiver Program (VWP) allows citizens of 38 countries to travel to the United States for stays of 90 days or less, without a visa. Travelers only need a valid, unexpired foreign passport (good for at least 6 months beyond their stay), prior ESTA registration and authorization, and they may only come for business and tourism purposes. ESTA stands for Electronic System for Travel Authorization.

 

If you and your fiancé have just begun planning your life together in the United States, and your foreign national fiancé is not yet in violation of the Visa Waiver Program, it is great that you are exploring your immigration options before doing anything drastic. If you are both willing to wait a little less than a year for processing (5-8 months is the average wait), and you have some money saved up, there is a fully legal and streamlined way for you to petition your fiancé to come to the U.S. (on a K1 Visa) and obtain a green card. However, you have to be a U.S. Citizen to use this route. It is called the PETITION FOR AN ALIEN FIANCE , fully endorsed by the Department of State and United States Citizenship and Immigration Services.

 

Unfortunately, for some individuals who have been hit by Cupid’s arrow, life is just not that simple.

 

If you are a traveler on the Visa Waiver Program, generally you cannot adjust status (i.e., obtain a green card) or change to any nonimmigrant or immigrant category while in the U.S. Generally there are no ‘ifs’, ‘ands’, or ‘buts.’ You waive your right to appeal as a precondition of participating in the program. If you overstay past the authorized 90 days, you will no longer be eligible for future swift and convenient travel via the VWP. You will have to apply for a B Visa like the rest of the non-VWP countries, and approval will be more difficult now since you have an overstay on your record. Further, if you overstay long enough, you may run into problems returning to your lover’s arms in the U.S. thanks to the “3/10 Year Bar.”

 

But where there is a law, there is a way!

Individuals who marry in the U.S. while on the Visa Waiver Program may be eligible for ADJUSTMENT OF STATUS to eventually obtain a green card .

 

You and your new husband or wife can remain together in the U.S. while your application for permanent residence is pending. However, you must file the application within the 90 day window. Also, this CANNOT be your fiancé’s reason for coming to the U.S. on the Visa Waiver Program, or else that would entail IMMIGRATION FRAUD, with consequences . Therefore, this should never be something you are “planning” to do, but rather the recourse for couples who just “ended up” in this situation for one reason or another. U.S. Customs and Border Protection officers (CBP) are trained to detect preconceived immigration intent at the border, so you do not want to put your fiancé and future marriage at risk.

 

 

If you married on the Visa Waiver Program, unfortunately, your application for permanent residence is at risk for more scrutiny and suspicion than the usual application, particularly with regards to the aforementioned preconceived intent .

 

Thus, it is usually best to seek the assistance and expertise of a U.S. Immigration Attorney to help you meet that evidentiary burden and prepare you for the potential questions at your USCIS interview.

 

OUR FRIENDLY IMMIGRATION OFFICE can help you get through the adjustment of status process, with less stress . Leave the legal work to us. We assist clients WORLDWIDE and nationwide, offering remote meetings with overseas clients , and online payments and installment plans to fit any budget. Send us an inquiry for a RISK-FREE QUOTE HERE .

 

 

Alternatively, if you are interested in the PETITION FOR AN ALIEN FIANCE route, we can also fully assist you throughout that entire process. You do not have to go through it alone. Our office will be l ooking out for you and your future spouse to make sure everything is going OK, as planned . Whether you plan to hold your wedding in the U.S. or another country, we can provide guidance regarding your immigration options before marriage, or after. Please contact our office to get started right away.

 

*For Article Requests , Republications , or Speaking Engagement s , please email: jennifer@law-jf.com

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** Jennifer Fabian-Verzosa, Esq. is the founding attorney of the Law Office of Jennifer Fabian-Verzosa , an immigration law practice that provides local and remote immigration assistance to clients throughout the U.S. and worldwide.**
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DISCLAIMER : This blog provides general information and is not intended to be legal advice. Use of the information does not establish an attorney-client relationship. Any cases mentioned do not guarantee or predict outcomes in future cases. Please consult an attorney before acting on any material. Please do not submit any time-sensitive or confidential information in the comments below. Any information you send may be publicly-visible and is not protected from disclosure. Jennifer Fabian-Verzosa is the attorney responsible for the content and material on this blog. She is licensed in D.C. and HI, and exclusively practices immigration law in federal jurisdictions.
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