The Visa Waiver Program (VWP) designates the ability of citizens of certain countries to enter the United States without a visa obtained at an American consulate or embassy abroad, but with what is called an ESTA authorization (Electronic System for Travel Authorization).
If you entered the United States under the Visa Waiver Program with an ESTA, and are considering filing for family adjustment of status, these are the things you need to know:
- Applicants under a ‘preference’ classification (F1, F2A, F2b, F3, F4) are not allowed to file a family I-485 (only immediate relatives of U.S. Citizens can).
- Immediate relatives of U.S. Citizens need to make sure that they are not triggering the 90-day rule.
- When you complete the I-130 online or paper-based, and you entered with an ESTA, you need to look for the ‘VWP’ in the the drop-down associated with Last Entry Visa Information.
- Your I-94 must be obtained online: there is not going to be a paper-based version of an ESTA.
Consider the following examples:
- Your spouse is a Green Card holder. You are a German citizen and entered the United States with an ESTA. You decide to stay and want to do a concurrent I-130 & I-485 filing. You are not going to be allowed to so, as you will be under the ‘preference’ classification F2A.
- You are a French citizen who entered with an ESTA. Within 90 days of entry, you get married to a U.S. Citizen and decide to file for adjustment of status. Even if you can technically file form I-485, you could trigger the 90-day rule and USCIS may think that you misrepresented your intentions on the VWP application.
If you would like to learn about the requirements for using the visa waiver program, go here.