Marriage Green Card with ESTA Entry? Answers from Los Angeles Immigration Lawyer

My girlfriend came from Germany (she’s German) to stay with me (I’m American) for the entire duration of her ESTA visa and is returning back to Germany today. She plans to come back Mid-October for a handful of months and we are wondering what the best visa would be for her to get so that she doesn’t have any problems at the airport when she tries to return back into the States.

Mark F.,

Palos Verdes, California

What is ESTA (Electronic System for Travel Authorization)? What is the Visa Waiver Program?

ESTA (Electronic System for Travel Authorization) is an electronic application system that you’re required to use if you’d like to travel to the United States under the Visa Waiver Program. Submitting your application through ESTA helps U.S. immigration officials determine if you’re eligible to travel to the United States under the Visa Waiver Program. ESTA is the pre-screening, and the official decision about whether to allow you to enter the country happens later, usually at an airport.

The Visa Waiver Program is available to citizens of almost 40 different countries. Under the Visa Waiver Program, you’re being allowed into the country as a visitor or for business. If you receive an approved travel authorization through ESTA, then you’ll be able to travel to the U.S. on the Visa Waiver Program without needing an actual visa. Typically, you’ll be allowed into the country for 3 months (or 90 days), and you have to leave the U.S. before that time expires, otherwise you’ll be in the U.S. without any lawful status.

When you apply for the Visa Waiver Program through ESTA, you’re telling U.S. immigration officials that you intend to be a tourist or come to the U.S. for business, that you don’t intend to engage in any other types of activities, and you don’t intend to stay in the U.S. on a permanent basis.

Nonimmigrant intent vs. immigrant intent

When you only intend to stay in the U.S. temporarily, this is called “non-immigrant intent.” But if you plan to stay in the U.S. on a permanent basis, this would be called “immigrant intent.”

The Visa Waiver Program only allows you to have nonimmigrant intent, so if U.S. Customs and Border Protection officials think you plan to stay in the U.S. on a long-term basis, then they have the right to deny you entry. They usually suspect immigrant intent when someone travels to the U.S. very frequently and stays for long periods of time (a particular “pattern of travel”), and especially if you’re staying with a serious boyfriend or girlfriend during those trips.

Other things U.S. immigration officials look at to figure out if you have immigrant intent are:

  • real estate ownership in your home country
  • proof that you have a job in your home country
  • proof that you have a spouse or child in your home country
  • proof of business or financial investments in your home country

Overstaying ESTA might have serious consequences

If you stay in the United States beyond the 90-day visitor period that ESTA grants, then it may be possible to pursue a marriage-based green card through adjustment of status. But be careful:  U.S. Immigration and Customs Enforcement (ICE) has the authority to order your deportation,  even if you are married to a U.S. citizen. Unlike those who overstay a visitor visa, as Visa Waiver Program / ESTA overstay, you could be deported summarily with no right to a hearing before an immigration court.

Avoid Misrepresentation! “Do you have a boyfriend in the U.S.?”

U.S. Customs and Border Protection officers at ports of entry to the United States ask questions to every entrant about the purpose of their trip and how long they intend to stay. It’s incredibly important to be truthful when questioned, otherwise this can lead to much larger problems, like being charged with fraud and needing a waiver to enter the country in the future.

What Should Your Girlfriend Do?

In your girlfriend’s situation, because of her pattern of travel with frequent long trips to the U.S. and because of her relationship to you, unfortunately there’s no guarantee that she’ll be allowed back into the country in mid-October on the Visa Waiver Program. She could be turned away at the airport by the U.S. Customs and Border Protection officers after they question her.

In terms of what she should do, it depends on where your relationship is at at the moment and where it’s going. If the two of you are in a very serious relationship and you’re ready for marriage, then you should look into the fiancee visa process or the immigrant visa process. Those are both visas that would allow her to remain in the U.S. permanently and would eventually lead to a green card for her.

Have Other Immigration Questions? Contact a Los Angeles Immigration Attorney Today!

The Visa Waiver Program and ESTA may seem straightforward at first, but it can often be a major source of confusion. If you have questions about this immigration program, and especially if you think that your future plans might call for a different kind of immigration status, make a consultation with an experienced Los Angeles Immigration Attorney today!

Attorney Joshua Goldstein and his team of immigration lawyers can help you figure out what immigration options are best for you. Our friendly and professional team of attorneys and paralegals will help you successfully navigate the immigration system and make this process much less stressful.

To speak with Los Angeles Immigration Attorney Joshua Goldstein about your legal needs, call 213-262-200 or fill out our convenient contact form and book a consultation today.