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.

If they have to rely on the MIL and BIL to sign the affidavit of support in connection with adjustment of status with USCIS, they can't claim much. The aim of the Affidavit of Support is to ensure the supported individuals don't become a public charge.

He had been filing and that country has a tax treaty

Apart from entering the country illegally there are other considerations.

Health insurance. Can she get any on an ESTA? Holiday insurance won't cover her for long.

Taxes. She should already be reporting her taxes to the US, how is she going to do that and work illegally?

Car and car insurance. Will she be able to drive without a US driving licence? I know she will be able to use a British licence but not forever.

Can she even open a bank account?

Car insurance works differently in the US in that the car is insured rather than the driver. However, you have to be in the country legally to drive, if you see what I mean.

Basically I can drive any car here as long as the owner has insured it, even on an ESTA, but if I broke the terms of ESTA, like the OP, then the insurance would be invalid.

I thought you could only do this if you were actually filing separately though. I assume OP is not obliged to as not US citizen/ permanent resident or earning in the US.

It’s a minefield even if you’re doing nothing wrong. I hope this is just a hypothetical.

It's unfortunately not hypothetical. Real couple though have changed some details on their relationship to me though facts are true.

She can't drive. She left uk straight after uni and he dissuaded her from learning in that country cos it was too expensive due to requirement for formal driving lessons before taking a test.

He said he would teach her in the usa!

Ooft. With very few urban exceptions, I would not want to live in the States unless I could drive, especially with kids. In fact, I learnt to drive before moving here because I saw how difficult life would be without a car and I say that as someone who lives in a walkable college town with pretty good public transport links to two big cities.

There is absolutely no public transport there..its a low COL state. Not a walkable college town at all! She wanted to learn to drive but the dh dissuaded her from doing so cos it would be 'easier in the usa'

The DH can drive. Now I am thinking about it , he is either very stupid or very abusive based on everything he has done and said and neither is good.

when we were talking about it in 2022, he said he wanted to move to the USA cos in the USA you can move just one mile away and get a huge house with a yard for a low price. Instead of UK where his wife's mother has a house in London (albeit it is not in great shape) and is happy for them to stay rent free and help with the baby, cos the UK has 'a lot of problems'.

I bet this isn't even true cos i keep reading about the housing crisis in the usa where many people of limited means can't buy either (high interest rates make the mortgage expensive). If you can't buy and don't have high earning power, i am not sure how USA is an improvement over UK given the lack of universal healthcare or a social safety net or the need to run a car despite your financial circumstances.

They are under the impression that after they apply on day 91 ( 3 months), they will get employment authorization after 3-5 months and the green card probably at the end of 5 months.

on the other hand i have seen people who had adjusted status from esta wait 2 years (and not being able to work). There is a whole thread on reddit where people waiting on AOS describe how they occupy their time with going to the gym/doing free courses online while waiting for green card! Almost all don't have kids though so I suppose its easier to do stuff like that.

When i lived with my DH in europe while he was doing his masters, I interned and didn't earn money for around a year and a few months but we managed on his income as our costs were very low with the cheap rent (500 plus euros) and cheap food and healthcare insurance for both of us was deducted like tax from his paycheck. I think our grocery bill was like 25 euros per week.

i just found this, they may be banking on this.

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6

With certain exceptions, an applicant is barred from adjusting status if:

• He or she continues in or accepts unauthorized employment prior to filing an application for adjustment of status;[1] or
• He or she has ever engaged in unauthorized employment, whether before or after filing an adjustment application.[2]

These bars apply not only to unauthorized employment since an applicant’s most recent entry but also to unauthorized employment during any previous periods of stay in the United States.[3] As previously discussed, the INA 245(c)(2) and INA 245(c)(8) bars to adjustment do not apply to:[4]

• Immediate relatives;
• Violence Against Women Act (VAWA)-based applicants;
• Certain physicians and their accompanying spouse and children;[5]
• Certain G-4 international organization employees, NATO-6 employees, and their family members;[6]
• Special immigrant juveniles;[7] or
• Certain members of the U.S. armed forces and their accompanying spouse and children.[8]

-

This is sounding worse and worse OP

the illegal working, not having a car or the expectations?

Can your friend not stay with her mum in London and her husband apply for her spousal visa from the US via the London Consulate? That she has somewhere to stay whilst it is all sorted out is incredibly fortunate and they should take advantage of it.

I know being apart is not ideal but new(ish) rules mean she can visit him whilst this is going on and it will soon pass and he will be able to visit her. At least this way they will not be risking their long-term future. She will be able to work in the UK whilst all this is going on and when she does get to the US, she will be able to legally work there too.

She can also take driving lessons whilst she is waiting otherwise she will be stuck in the house with a toddler all day.

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-6

what do you think of this. I know its a risk and not great to do but i think perhaps why they are taking such risks is because they believe that as she is a spouse of a US citizen, her overstay and working would be 'forgiven' so it is worth a punt.

All of it.

I'm seeing red flags. She could end up deported without her baby, I wonder if that is what her husband has planned?

I doubt it. I think he is ignorant of immigration. He hates immigrants but doesn't think of his wife as one nor does his mum. They think because she pushed an American citizen through her vagina and is british she is Prince Harry league.

In fact her MIL told me that there would be no problems cos she is white British. If I raise any questions they think i am speaking from my experience as a non white immigrant. People like them get better treatment.

That allows up to 180 days of illegal work.

So she’ll need to get her EAD in 89 days if she’s filing on day 91, which doesn’t seem likely.

What’s her plan if that doesn’t work? Tell her employer she has to stop working for an unspecified amount of time?

That’s the most sensible option IMO, @Paninaro94 , it would’ve made sense to do this from the outset, then they wouldn’t be breaking any immigration rules. As I said upthread, I stayed behind with our children while DH started his new job in the US and applied for my visa, it was the simplest route and took a few months (I believe processing has slowed down since the pandemic, unfortunately).

If I were her, I’d get on a plane and go back to London before the ESTA expires.

It's what I did too - stayed in the UK (with several small children), and jumped through all the immigration hoops. Filled in my forms, got my police background check, did my medical, attended the Embassy for appointments and my interview. DH moved out to the US, started work, and found us a place to live and a car, health insurance, etc.

It wasn't much fun but it meant we weren't running the risk of me being deported. I got my right to work immediately upon arrival, green card soon after, and citizenship three years later.

If the OP's friend is deported, where do they plan to live? Does her spouse have the right to live and work in the UK?

Bless them and their magical thinking. I've rarely come across such actively vile people as some of the USCIS staff I've had to speak to, and I'm white British. I help out with a non-profit that supports immigrants, so we speak with them on our clients' behalf periodically, and they could not give a shit about how much they are fucking up immigrants' lives. Some of them actively revel in it.

Her spouse doesn't have the right to live and work in the UK and actively refuses to live in the UK, even before he visited it.

I guess they can go back to where they were living before and they are both citizens there.

What surprises me about the US immigration system is that there are so many people online who have done similar things to what my friend is planning though to be fair they had no children, and were attempting to adjust straight after marriage. No wonder they think they can circumvent the rules.

Might be taboo to say but not everyone will always want to do things strictly and correctly by the book. There are always people who would want to do as much as they can get away with. The question is how much can you stretch it.

Like i mentioned before, i got married in europe on a tourist visa though there was an official marriage visa i could have gotten (as marriage in Germany between foreigners involves a few months of bureaucracy and they wouldn't allow a tourist to stay on even if the process takes too long). I am a non visa national and i took advantage of that, and managed to marry in Germany successfully by splitting the 4 months between Germany and the UK as a tourist. So it wasn't the perfect way of doing things but it worked and we weren't breaking any laws. We also got my residence permit literally 2 days after I married.

I believe my friend thinks she is doing what I did all those years ago. Not the officially sanctioned way but a way that will eventually work.

People have done it but it is very fraught and if it fails, you’re fucked forever. Also, she cannot leave the US whilst all this is going on, so if something happens to a family member who is overseas, she cannot do a thing. She also has no health insurance, which is bonkers. I think the fact she intends to work whilst she is in limbo and not supposed to adds to the chances they will be rumbled.

I’m not a haughty, holier-than-thou “I did it properly therefore everyone should” person, we did was was right for us in the long-term, but this is really a bad idea for your friend.

Also, I came to the US for a better life. It sounds like your friend’s will be considerably worse.

I think their thinking is that they never had the opportunity to live at home and save when they were in their 20s due to moving abroad after university and spending all their money on very expensive rent I know that a lot of people haven't had that but in our community it is incredibly common for people to be able to live with family and save..

So from that perspective they feel their lives would get better in the long run if they have that 1 to 2 years to save. I moved to the UK and lived with dh's mum for 3 years to save a deposit, I would not have the living standards I have today if I didn't have that.. I suspect they are not gravitating to the uk even though its easier visa wise and likely would not involve separation as her mum doesn't have much space (typical london 3 bed terraced) but his mum had a 5000 square feet 5 bed house (and she is living alone). So it is too tempting.

As for the healthcare perhaps they are hoping that after she gets her visa they can qualify for all the subsidies. Remember they are republicans and many poor people who vote republican can't afford healthcare either but are also against 'socialist healthcare ' but must have some reason of explaining it to themselves. I have read that some evangelicals with giant families get some fake Christian insurance thing which covers almost nothing but is affordable.