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.

Here is what he has to do if he wants her to get to the US and live there legally:

travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/immigrant-visa-for-spouse.html
"Immigrant Visa for Spouse of a US Citizen"

travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-spouse-k-3.html
"Non-Immigrant Visa for Spouse of a US Citizen"

He has to be living in the US.
He has to be working there.
He has to petition and send in the required forms. She has to send in the required forms.
They both have to wait (and wait and wait...)
She has to wait where she is now, not in the US.
The child should stay with her, outside the US.

There are no shortcuts.

He is lying to her wrt the "immigration lawyer".

So the wife is from the same religion?

But not American?

Where exactly was their civil marriage done?
Courthouse?
Park?
Back yard?

Who officiated?

Did they get a marriage license from the county they were married in?

Does the wife have a copy of the marriage certificate that would have been mailed to them by the county clerk once the paperwork certifying the marriage was submitted by the person officiating?

What I see is that the husband can stay with the child. She'll get deported and banned. Crazy risk to take. She should get her paperwork sorted properly so she has some hope of being able to stay and work if the marriage fails. He may be planning the whole thing. It happens.

Yes they are the same religion. It was in a courthouse wedding. Wife is british.

I don't really want to say the country they are living in and where they met às it is outing but suffice to say its not a good place to live in now which explains the urgency.

However he assured me he wasn't running away and the reasons for moving were primarily economic. Anyway he was talking about moving to America two years ago though I assumed then he would do it the proper way.

His mother will be the joint sponsor, she owns a house and has a job and presumably savings and other assets.

From what i understand us immigration law re spouses is flexible in that way unlike in the UK where the UK spouse and the UK spouse only can fulfil the income threshold even if they are the sole caregiver for 3 kids.

https://www.yeklaw.com/blog/2021/july/can-i-get-a-green-card-if-i-am-on-esta-/

The only exception for ESTA adjustment of status is immediate relatives of United States citizens, so long as they did not make any misrepresentation or have fraudulent intent at the time of entering the United States.

The problem i suppose is convincing border control that you had zero intent of immigrating to the USA when you went to 'visit family' in the USA. You just 'changed your mind'.

It has worked but mainly for people who seemed to have had whirlwind romances, got married in the USA and then didn't leave.

given she got through border control, surely this means that no intent was established that she had intention to commit immigration fraud.

So she can just apply on day 91 and then adjust her status?

If by some miracle this all works and she gets her immigrant visa and is living happily in the US she will have to start filing tax returns. They will ask what money she has earnt, including any income from abroad.

At this point she either has to admit that she’s been illegally working on an ESTA, or lie on her tax return, which is a felony.

Something for her to consider.

Also, while I think it is possible to adjust your status in the way they are suggesting, I’d expect they’re going to need the help of an immigration attorney to get through the process - which will be expensive. For a couple who can’t afford health insurance this sounds like a challenge.

And this all depends on the non-US spouse being able to convince the immigration officer that she is not entering the country with the intent of staying, which involves things like showing a job, lease/mortgage, bank accounts etc back in her home country, a return flight, and any other evidence she can gather.

IME (from being on forums with lots of people who are trying to immigrate into the US) whenever a US citizen arrives with a spouse or fiance, immigration generally assumes intent to stay indefinitely until they see proof otherwise.

As the wife of a US citizen who did jump through all the correct hoops, I’ve still been through fairly traumatic experiences with border officers - one of whom tried to deny me entry to the country despite me having done everything correctly, and only relented when I pulled out the number of an immigration attorney and prepared to call her.

There are some forums your friend could join if she really wants to get informed about the process. Visa Journey is a good one.

Right now she’s planning to put herself in a very precarious position.

I am not sure if they can't afford it or not. It's just that they are in the jobs from the previous country they were living in and they are not high paying jobs and that country had European style health insurance..I would say their salaries are on par with uk average. Don't think the uk average worker can cough up 1000 usd dollars in health insurance per month for a family of 3, many average people can't even afford £250 heating bill

But for a one off visa application, am sure most British people can cough up a few thousand

That’s good as the fees alone without a lawyer are currently over $2,000.

I’d guess a lawyer will be $5,000+ on top of that.

Does sound like an awful lot of money for a piece of paper but given its a one off I am sure her MIL would probably help.

What I am not so sure about is medical bills if uninsured. What if the baby gets sick and they have no insurance. Some babies can get sick randomly and have to go to hospital (that happened to me when I was a child). My uncle in America got pneumonia, landed in hospital and the bill was 100k though insurance paid!

So if she’s got in, then wouldn’t they say well, hang on you told us you were here to visit family…

But then she changed her mind. It happens. She saw her daughter with her grandma and realised that being close to family is everything

I don't think the MIL can sponsor the DIL for purposes of securing the green card.

She can file an affidavit of support (form I-864). Her annual income will have to meet published USCIS thresholds in order to be considered adequate.

The husband is the only individual who can submit the I-130 form (sponsorship). There is no such thing as a co-sponsor.

It behoves the husband to get a solid job the day he arrives in the US, otherwise his petition could be rejected on grounds that the family could become a burden on the public finances.

As if they would believe that. They could say ok fine then leave the USA, file the paperwork and then come back

Yes she is filing an affidavit of support. And he is working remotely. The pay is probably poor by usa standards

The mum's annual income probably meets it, she is a senior teacher. Also she owns a house mortgage free. And he has a brother who is quite well off I am sure he would also sign if need be.

What do you mean by solid job. Meaning the kind that pays 50k which I understand is measly by usa standards but his mum is in a low col state. Would that be enough to support a family of 3.

This situation is insane as many posters have already said. My American DH sponsored me to come to the US several years ago and we did what others have recommended. He was offered a job back in the US, he went over and started working, applied for me to join him and we jumped through all the necessary hoops. Yes, it takes a few months, but it meant that I could start working when I arrived and I was on track to become a permanent resident, later a citizen.

I honestly wouldn’t start the process doing anything dodgy-as PP’s have pointed out, USCIS conduct
background checks, you need to submit tax returns, etc. , it’s just not worth the risk of being deported. Especially when you have a child.

Oh, and she mustn’t listen to her MIL. I once worked with someone who brought her British husband over in the early 1980’s and it was completely different then, easier from what she said.

It would need to pay at least 125% of the poverty level for a family of their size, as established by the federal government for the state they're going to live in. This information is available on state and federal government websites.

Each state has its own poverty level (it is recognised that col and average income vary by state).

Does he have some objection to finding a job and supporting his family?
Some impediment to working?

Without a job, and apparently relying on his mother to support them, there would be an implication that if she were to die in the morning, they would all ultimately have to rely on medicaid or food stamps or cash benefits.

This is fine for an American citizen in normal circumstances, but for an American citizen petitioning for his wife to live with him legally in the US, USCIS might look askance because the wife could become a burden on the state.

Signing the I-864 means entering into a contract between the signers and the federal government to financially support the immigrant if needs be. If the immigrant ends up claiming certain benefits, the government can go after you to get that money back. It's not a simple case of "sure, where do I sign..?"

If he will be working remotely from the US in the same job he has now, he needs to hire an accountant or a tax attorney to figure out his taxes. It is best not to fall afoul of the IRS when trying to get a spouse into the country.

If his income is low by US standards, he needs to brush off his resume and start looking for another job.

She has already started it, she is in the usa!

I understand that but the family is very close, far closer than typical European or American families... very clannish. When I was around her MIL, it kinda reminded me of very intense family relationships that you read about in threads by South Asian Mumsnetters. So they would probably sign.

In fact her MIL came over when her husband was a student and her in laws also signed an affidavit..I understand it was obviously a lot easier then and I kinda tried telling her that (as someone who migrated to a rich English speaking western country in 2010s) but she didn't believe me.

He has a remote job but it's pay is pretty low or rather not high by American standards cos his mum was always talking about doing affidavits for him

Ah, I thought this is what they were planning.

Well, they’ll have to figure it out and hope for the best. 🤞 I do think that get DH is daft not applying for jobs here in the US though, they’re creating a difficult tax situation as well.