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 imagine because it's very time consuming and expensive. I came to the US on a fiancee visa 10 years ago and it took 18 months when we were stuck in different countries and I wasn't allowed to visit.

Hopedully things have changed in the last 10 years, but even if you're married, it's very hard to bring your spouse to your home country.

I have dual citizenship with the US and another country. This is not going to work. She needs to see a reputable immigration lawyer, without her husband. She would be risking so much if she did this!

she is relying on the catastrophic insurance coverage on her current plan. The country she was living in has a european style health insurance system

no idea about the taxes.

she is doing this in 2 weeks. i only just found out. no one else in her family dared to ask. i was the one who asked her DH the point blank questions. her mum didn't even know what she was planning

As an immigrant i am more conscious of the difficulties of international marriages so i wondered what the fuck is going on.

The chance of her getting caught is almost certain.

Whatever route she takes (other than the correct one) she's going to have to lie about something that will make a problem somewhere else.

For instance, she's either going to have to declare she's not employed, not earning - which would obviously be detrimental to her application.

Or she's going to have to admit she is working and earning, and has been evading US tax while resident in the USA. This is the country that taxes US citizens on earnings when they work and live outside the US, and are paying taxes already where they do live. They're not going to say 'OK, OK, never mind.'

I would be incredibly suspicious of her husband's intentions if he's so insistent she follows this ridiculous plan.

Surely it's not worth the potential of, worsr case, not being allowed to visit her child for 10 years?!

I just find this both insane and fascinating! Sooo many things to go wrong. It wpuld be interesting to see what happens in 2 weeks - the whole did she didnt see go??. Im not sure you can do anything OP, other than raising your concerns as you have done

he has been filing his taxes for years, but has always earned far below the 110k tax free cap. idk how he files his taxes and if he includes her.

I would be incredibly suspicious of her husband's intentions if he's so insistent she follows this ridiculous plan.

Me too.

She needs advice from an immigration lawyer who she sees without her husband present.

at the same time i can see why she can't continue to live in the country she is living in. It is not sustainable. Her DH refuses to move to the UK.

There are basically no good options. So i think she thinks she can get away with this.

I think they were living on borrowed time for a long time. They needed to do the big move years ago but they delayed it until the point where they have no option. The DH has family in america who are happy to let them live rent free and support them. They have no support network in the country they were living in. They see people like DH and I get rent free living in our 20s (which enabled us to be home owners in our 20s and relatively comfortable now) and feel that this is the only solution to their problems. obviously when dh and i did it, we were part of the EU and it was a totally different country, totally different situation plus no baby.

It really, really sounds like a way for the husband to get the child to his mum and your friend out the picture.

Tbh my instinct is the dh wouldn't stay in America but will return to the country they were living in with her. He is a lower earner and he definitely can't afford American childcare on his own. I met his mum and she refuses to do free childcare, she is also still working.

He can't raise the baby on his own even if he wanted to. They are just rolling the dice. They are both dual nationals, they have a place to go to.

He is a lower earner, i met the dh's mum and she told me she works, she doesn't do free childcare. He can't support the child on his own and he knows it.

American here, married to a Brit, with dual-citizen children. We moved to the US in 2020 (yes, in the middle of COVID - 0/10, do not recommend). We went the direct consular route via the London US Embassy and it took 10 months from our initial application to DH getting his visa and immigrating (and that's while the consulate was mostly closed because COVID).

Even if they don't get caught coming through Immigration (which, I would put the chances of getting caught at about 80%, when we did live in the UK and visited the US, they grilled both of us every time about our plans. If the Immigration officer even thinks for a second that you are lying or trying something sneaky, they can just refuse to allow the non-American into the country), living in the US with no valid visa is incredibly difficult. No driver's license, you can't be added to any bank accounts or credit cards, no US health insurance (and therefore limited access to US healthcare), you couldn't go on a lease or a mortgage, if anything happened to the British job, you couldn't get an American one.

It doesn't matter how long she stays in the US, when they go to try and apply for a green card for her, USCIS will check when and how she came in and (best case scenario) they will either expect her to leave the US and come back when she has the visa, or (worst case scenario) she will be kicked out of the country for entering and remaining fraudulently and be banned from coming back in (the ban is usually for 10 years). One of the key limitations when entering the United States on ESTA is that you cannot file for a change of status It's not enough for her to get into the US and stay for a while. That guarantees absolutely nothing. Their plan has a 0% success rate.

I used this forum for figuring out how to navigate the process of moving here and there LOTS of cautionary tales about how it goes wrong when you try to cheat the system. Have a look and encourage your friend to do the same.

Yeah the USA is nothing like that. And neither is the U.K.

Even visiting the USA as a tourist you can be grilled at immigration for all kinds of reasons.

thank you so much for your detailed account.

Sorry if this is a weird question, you said you were grilled, is your DH white. My friend is white and blonde, and her DH is a republican, i suspect he thinks that cos she is white british, it would be easier for her. I am sorry this sounds batshit crazy but this is genuinely how the DH thinks, He is very very right wing and convinced he is right all the time.

She can't drive, she and her dh can't afford us health insurance anyway, they would be living with family until they saved up enough to move out. The mum already said they can stay forever if they needed it.

My white Dad has been grilled because he had lots of stamps for prior visits and they were seeming to be worried he was job seeking.
My white husband was taken for extra questioning because he has a common surname.
I once got grilled asking about the hotel we were staying in!
Your friend is such an obvious target. And as someone else as posted above, an esta doesn’t allow you to change status anyway which seems to be the main point of their plan even if she does get in ok?

i was grilled when I was visiting the Uk while trying to get married in europe. But i got through cos I was a visa free national, i am allowed to visit the UK, and it is not illegal to get married in europe and want to visit other countries while waiting.

Once i was married to my DH who was studying (and later working) in Europe, i was able to get a residence card in that country as spouse of someone exercising freedom of movement. And then i was able to apply for another visa that allowed me to return to the UK.

https://immigrationlawyers-london.com/blog/what-is-surinder-singh-route-and-how-to-apply.php

The UK’s “Surinder Singh” immigration route allows a foreign national to acquire an EU Settlement Scheme family permit on the basis that they were living in an EU or EEA country with a British citizen prior to 31st December 2020 and now wish to live in the UK.
The route was created following the 1992 High Court case of Surinder Singh, in which it was established that a person’s freedom of movement right to move from one EU member state to another also allowed them to return to their home country under EU law. And because it is EU law that applies, this also meant that eligible family members could join them in the UK.
Eligible family members using the Surinder Singh route can apply for an EU Settlement Scheme family permit. With an EU Settlement Scheme family permit, it is possible to travel to the UK for up to six months. During this time, permit holders can work, study, and travel in and out of the UK freely. Most importantly, however, once in the UK, an EU Settlement Scheme family permit holder can apply to the EU Settlement Scheme for pre-settled status. With pre-settled status, it is possible to stay for up to 5 years to gain the full period of residence required to settle permanently in the UK. Settled status is awarded after 5 years of residence in the UK and provided permanent settlement (i.e. equivalent to Indefinite Leave to Remain – ILR).

after i got my residence card in europe and then later my family permit and settled status, i have never been grilled again and i travel extensively in europe.

Also not being able to drive in the USA doesn’t same like a good idea..

Surely if you go to the US without the proper visas they want to know where you are staying and for how long and will want to see how you are going to pay for your stay and will want to see a return ticket.

Years ago, on holiday Dh got very ill and I remember the travel insurance company saying that they would contact immigration or some government department like that as we would not be making the return flight as planned as dh was still in intensive care. The way they said it I had visions of big burly immigration officers with guns forcing their way in to our Disney hotel room and frog matching dd and myself to the next plane out of there

If they did it properly I doubt there would be any sort of objections especially now all UK citizens are able to enter the green card lottery.

I somehow think because of your updates that the dh is up to something.

Even if he wasn’t and everything was fine I would still want my own independent immigration advisor to run through options that are related to myself and not a dh who together with my child are US citizens already

She needs to see a lawyer asap. This will not work. US immigration do not mess about, and they know every trick in the book. She is at real risk of losing access to her child down the line.

@esta2024 My DH is as white as they come, blond hair and blue eyes with a posh London accent, so I'm not sure that will make a difference. I also was, at the time, a registered Republican.

If he can't afford health insurance, that's just another red flag. They asked me how much I made, what kind of a job did I have, how much did we have in savings. If he doesn't currently have a job and they think he might be coming back to get one, with his wife in tow, that will def look suss.

EDIT: feel free to ask any and all questions, even if they're weird. I asked the people on the forum so, so many questions, because we didn't know anyone who had done that kind visa application/move before.

@ToThineOwnSelfBe has given excellent advice.

Surely your friend's DH can at least understand the most salient point.
If you enter on ESTA you cannot change visa status. Therefore their plan literally does not work. That simple really.

I suspect this is so cos when i asked them what health insurance they would have, they said they would figure it out when they got there. they are still on their wage packages on the countries they are living (remote working). That country definitely has lower salaries than London. I have never lived in the USA but a quick google shows that a family of 3 would easily pay USD1200 in monthly premiums (or £900) and that is being really conservative. If you ask the average London family if they could spare an extra £1000 for private healthcare premiums, the answer would be no, because our salaries at the average end do not accommodate that (and they are very much average people in their country which has salaries lower than London). Only USA salaries seem to, or there is employer health coverage.

He has a job back in the country he is coming from but they allowed him to work remotely.

As a general rule, foreign nationals who enter the United States through the Visa Waiver Program (also known as ESTA) may not adjust status to permanent resident (green card holder). Specifically, a foreign national admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status. But there is an exception for immediate relatives of U.S. citizens and VAWA-based applicants. These bars also do not apply to those applying under the federal Violence Against Women Act (VAWA).
Immediate relatives have tremendous privileges and allowances under U.S. immigration law. As such, adjustment of status for visa waiver program entrants is a special benefit available to immediate relatives.

https://citizenpath.com/adjustment-of-status-visa-waiver-program/#:~:text=As%20a%20general%20rule%2C%20foreign,resident%20(green%20card%20holder).

I suspect its cos they read this. However i appreciate it is still very risky because like PP have said; illegal working and intent to immigrate when on esta.

Won't work and could easily be refused entry. They almost refused me (different circumstances) but because I had return tickets they let me in. I had a B1 visa not an esta too. I then returned to the U.K. and got my residency permit