Friend moving to USA with US citizen DH and US citizen baby on ESTA

[esta2024]

Asking all british spouses of US citizens.

My friend has decided to go to the USA with her American husband and baby on an ESTA (they were living abroad for years, baby born abroad), live with family while remote working for her current employer (not a US employer and money paid to overseas bank account), and on day 91 apply to adjust her status to a green card.

based on what i have read online, it is likely to succeed despite the fact that she would be overstaying on esta but it seems to have succeeded for many people as they are married to american citizens and in bona fide relationships and its difficult to establish intent to immigrate from the onset (as people say they are just visiting and then 'changed' their minds).

is this true, I can't quite get my head around this. Why doesn't everyone just do this and they wait 1-1.5 years for consular processing? I understand that by doing it this way, you give up all rights to appeal and if it goes wrong, you would be deported and banned from the USA.

I think you’ve done everything you can @esta2024 If she had a niggling gut feeling or had even an inkling her husband was up to something it would be worse, and I agree you’d have to really make her rethink.

If she’s already there, blinkers on, choosing not to see the risks, so be it. I couldn’t live with that level of stress/potential of free-fall, or a DH who was so cavalier about doing things in a fiddly, non-above-board way, and I’m not holier than thou either!

Every time I check this thread, I think of that saying that's so popular on Reddit:

https://www.reddit.com/r/BrandNewSentence/comments/15ulz1c/the_dildo_of_consequences_rarely_arrives_lubed/

This woman will not be happy with how this turns out.

As her friend, you’re right to be worried about her. Aside from the visa issues, her husband and his attitudes are totally unacceptable in today’s society. I’m astounded that an immigration lawyer said what they did, it would be career-ending if anyone reported it.

If her husband doesn’t become more open-minded ASAP, they’re not going to thrive here.

in what sense? They want to live in florida in the long term, aren't a lot of people there like that?

Not to offend anyone from florida (i have never been there).

@esta2024 You think that in 2024 most Americans hold and habitually spout racist views? That they think that they deserve to be treated differently (better) because of their skin color/ethnicity?

There’ll always be racists around, but such attitudes are wholly unacceptable.

Reading this thread has given me so much third hand stress.

Unfortunately, this will highly like end badly.

The best way to find any loophole to avoid bans, fines and prison terms would be to get an immigration lawyer ASAP..... and have the money to pay. Likely looking at $20,000+.
Doing this without one will end in failure.

Getting caught out, could land her with a permanent ban from the US, her husband and even MiL (as she is complicit) being fined approx $10,000 and face jail time. If he's fiddled the taxes, then that'll be extra time and fines. In that instance, the child could risk being rehomed, especially if the child has a US Passport, she'll struggle to mount a strong case to have the child deported with her.

Any application for a visa/green card requires confirming if the beneficiary has ever overstayed. You can't lie your way out of that as you have to include your I-94 which is your travel history. I looked at mine over the weekend.

He would have to file the I-130 and I-485. These are not a quick approval process.
https://egov.uscis.gov/processing-times/
This provides a rough idea of timelines.
Trackmyvisa also looks stats wise. For example the main bulk of applications they are currently working on are those from April 2023. There will need to be proof the marriage is bona-fide. With her being in the US already they will expect finances to be combined. She will not be able to do this any bank account together or solo will need proof of ID, proof of US address (utility bill or mortgage, leases don't count) and failing that an ITIN number.... which she will only have if the husband has filed taxes correctly.... again USCIS will scrutinise why they have been married 4-5 years and hasn't been filing as married.... all of which he'll have to provide on the I-864.

I feel sorry that they have been so naive and badly informed.

I am going through the process myself (I-130 and consular processing) and it is not exactly simple and just slow.

I read online that they will forgive overstay for spouses. Appreciate it may not actually be like that IRL

I am actually amazed they got through customs so praying for the best.

People on the thread, I wonder if trump's potential re-election will complicate matters. He refers to migrants as 'animals', would this also extend to my friend?

nope. American here and if she tries it she could get deported. Best to apply for her visa and wait it out. They will get there, more slowly, but also legally.

she is there now. The latest development is i suspect her husband has lost his remote job and is freelance (a bit outing to explain how i know). she has been there a month and i think highly unlikely for him to get a jo

can his mum be the sole sponsor for his wife's application? She is a teacher.

Well, that's unfortunate. He will still have to be the primary sponsor, his mum can only be the joint sponsor. It will not look good for him to be unemployed, but it is not a reason for automatic rejection. However. The overstay of the ESTA in combination with no job will be pretty damning. Public Charge inadmissibility, that is, the government's determination as to whether a nonresident will potentially become a burden to the state, will come in to play here.

The ruling says, "noncitizens are inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission, and (3) ineligible for adjustment of status, if, in the opinion of DHS (or the Department of Justice (DOJ)) or consular officers of the Departments of State (DOS), as applicable),[2] they are likely at any time to become a public charge.[3] While the statute does not define the term “public charge,” it does provide that in making an inadmissibility determination, administering agencies must “at a minimum consider the alien's age; health; family status; assets, resources, and financial status; and education and skills.”

There's a financial threshold the sponsor has to be above and it depends on how many people are in the family. For a family of 4, the threshold is $39,000. If his mum makes more than that (and it will have to be more because I think it will have to take into account her own costs), then theoretically it is still possible for her to adjust status. But as I said before, because that's not the only red flag, his unemployment will attract considerably more scrutiny.

well he would definitely register as freelance so not officially unemployed.

In today's economy, it is incredibly easy for someone to have a 'job' aka freelance graphic designer as an example. But is it really a job if you have 1 to 2 clients per month at most. The census would have you down as employed but for intents and purposes, in my view, if you don't earn full time minimum wage, you aren't full time employed. full time minimum wage in even the poorest states is at least 20k per year which is practically impossible if you are self employed with v few gigs.

@ToThineOwnSelfBe I wouldn’t bother responding to this thread, others have tried to give advice and this friend ( or it could be the OP?) is determined to overstay their visa and do things the wrong way.

its not my story, i am in the UK. I am just trying to anticipate what would happen. i tried telling her the same thing but all fell on deaf ears.

all this is very helpful, i might not have much sway but i can still persuade her mother and maybe her mother can advise her. i told her mother everything but then the mother said ' we shouldnt worry cos at least the DH loves her and it will all work out eventually if they have to leave'.

Okay...

The emphasis is not so much on having a "job" it's about how much you make. It would be absolutely fine for him to be freelance and only have one or two clients as long as those clients put him over the financial threshold every year. I imagine that is not the case here.

@BruFord, I understand where you're coming from. For me at this point, this is more a cautionary tale for anyone else who's thinking to do something like this, so I keep responding to make it very clear what the actual requirements are and why this is such a bad idea. I think lots of people think they can just move to another country and live there, so I don't mind adding another data point to show that it's not just hard, sometimes it's actually not possible.

LOL.

It is far worse. I recently spent 35 months waiting for my green card renewal to be processed. I am as white as they come, from a country whose immigrants are generally looked upon in the US as the salt of the earth.

USCIS treats everyone like a criminal trying to pull a fast one.

The biggest mistake this couple made was failing to adjust status immediately after they married a few years ago. The second biggest was failure to return taxes with the status of "married", either filing jointly or separately.

And now it seems the husband is "self employed". This woman is screwed.

The husband couldn't have screwed her more comprehensively if he had done it deliberately. He has persuaded her to shoot herself in bith feet and has handed her the weapon to do it with.

Now it turns out the DH has just qualified as a realtor so they can 'earn money fast'. It is now very obvious he lost his job and is not able to work remotely like he previously claimed..what I understand is that unlike the uk, being a realtor is a self employed gig in the usa (unlike in the uk where you get a small basic salary no matter what) so if you don't sell any houses you don't earn a dime but need to pay brokerage fees

The baby is now registered to a local daycare..what is the long game?

Did he lie to his wife about losing his job so that he could become a self employed realtor in the usa?! His wife probably thinks it is a job (as in you would be paid) like in the uk!

This woman must be monumentally stupid or gullible, or both.

He's been lying to her for years, imo - perhaps explaining the tax returns where he didn't declare married filing jointly; was there even any income to report?

I know two utter shysters who are realtors. One started his career as an unskilled short order cook in a fast food/greasy spoon type of place and the other was living in his mother's basement and only sold two houses in the course of his entire career. The short order cook has since bounced on to driving an Uber.

For some people it's a genuine career, and there are some great and very well off realtors out there, but for others it's just for the vanity of having a job title.

There is something seriously wrong with this man and the entire setup reeks.

Are you able to get in touch with the wife and speak to her on a confidential basis? She needs to be told some home truths. If she could persuade her husband to leave the US even for a fortnight and take the baby with them, she could ditch him.

But the baby being registered in the daycare is a cunning move. It establishes where the baby is normally resident, so maybe she really is screwed.

She should cancel the registration asap. The only reason to do this if she doesn't have a job is to trap the baby (and hence the mother) there.

Someone in this whole scenario has their head screwed on and is doing everything right if the whole idea is to trap the mother and baby in the US.

There was absolutely income to report. They both worked full time abroad and at one point rented a 3 bed flat for the equivalent of £1400 per month plus paid daycare for a baby (cheaper than uk but not insignificant way above prices in continental europe). They also ran a car.

I think this wasn't sustainable for the long term but they kept this up for a year so I think they were definitely earning two full time wages.

She does seem to have a job. We don't want to ask too much cos it may break the relationship. Dh was asking her about work and her new life in America, and she said she likes it in America cos baby has so much space in grandma's house plus the daycare is really nice (you can watch baby on video), but the bad thing is that America is less understanding if you need to take leave to handle kid emergencies so she is worried about that when she switches roles (I presume that she thinks she can work when she gets her EAD)

I presume she is still working remotely as she is paying daycare presumably since the realtor dh is probably not earning a dime given he just started.

As @mathanxiety says, her situation hasn’t really changed-although the baby going to daycare is alarming as they will be considered resident in the US.

She’s still in the same vulnerable position as an illegal immigrant. As American citizens, her husband and baby will be fine, she’s the one who’ll be in trouble.

How would they know baby is going to daycare, their bank statements?!

It makes me think her dh is clueless rather than malevolent cos daycare is probably not cheap and if part of an orchestrated plan seems stupid

@esta2024 When she’s interviewed, they’ll ask her details about her family life in the US. I agree that her husband probably isn’t malevolent, just clueless as to what a difficult position he’s putting his wife in by not doing everything the correct way.

Plus she probably shouldn’t be working remotely either as she’s not even supposed to be in the US. That may cause tax issues.

What would a Trump presidency mean for her..her visa would still be in the processing stage if he wins in November...