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I live in the US with a green card (over 10 years). My plan is to apply for US citizenship soon and have my girlfriend come to US with ESTA at the end of September (she was already in US in June for 2.5 weeks). When she comes here, and if all goes well between us two, after two months or so of her being in US we would get married and then start filling out paperwork for her legal immigration status and eventually for her green card.

I know that legally she can only be in US for 90 days, but that the paperwork for her immigration will take more than 3 months.

Thus, will it create any problems if her legal 90 day status ends and she becomes illegal, but the paperwork is underway already?

In other words, US Citizen + ESTA tourist = marriage during 90 day period: issues? concerns? works? doesn't work?

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    You think you're going to become a citizen by September? Uh, unlikely. Los Angeles field office says "five months" (which could possibly be 2 months) while NYC says late 2015. It very much depends on where you live.
    – mkennedy
    Jul 27, 2016 at 22:45
  • If you are still a permanent resident, " the beneficiary must have continuously maintained lawful status in the United States in order to adjust status." Bringing Spouses to Live in the United States as Permanent Residents. I don't know if it works the same way for citizens.
    – Patricia Shanahan
    Jul 27, 2016 at 22:57
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    Marriage is not a valid purpose to enter on an ESTA. She will be refused entry if they realize what you plan and you might encounter trouble with immigration when they figure out her entry was improper. She needs a K visa--and those take months.
    – Loren Pechtel
    Jul 27, 2016 at 23:40
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    @LorenPechtel: It's perfectly fine to enter on VWP to marry during a temporary visit (people travel to have weddings in foreign countries all the time). It's not okay to enter on VWP to immigrate (i.e. apply for immigration in this visit without leaving the US), which is what it sounds like the OP is planning for his fiancee to do after the marriage.
    – user102008
    Jul 28, 2016 at 7:23
  • @LorenPechtel she cannot get a K visa until he becomes a US citizen. If they want to marry before he becomes a US citizen, and they want to do it in the US, she can only do it under the VWP or another nonimmigrant visa.
    – phoog
    Jul 28, 2016 at 13:04

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Someone cannot enter on VWP (or any other nonimmigrant status except H, L, and a few others) with the intention to do Adjustment of Status in the US during that trip. CBP is required to assume that any nonimmigrant applying for entry is a potential immigrant, and it is the burden of the entering foreigner to prove that they do not intend to immigrate during this trip, to the satisfaction of the CBP officer, or they will be denied entry. If the officer asks about the purpose of the trip, and she answers truthfully, there is a good chance they will find out the plans to apply to immigrate during this trip, and they will deny her entry. (And lying to immigration is a huge no-no.)

If she gets into the US (she didn't lie to immigration and they let her in), she could apply for Adjustment of Status once you guys are married and once you become a US citizen. Someone who entered on VWP is not eligible for Adjustment of Status unless they are in the Immediate Relative category (spouse, under-21 child, or parent of US citizen), and that is why she needs to wait until you become a US citizen before she can file. Once she applies for Adjustment of Status (i.e. I-485 form is received), she will be authorized to stay in the US for as long as I-485 is pending. It doesn't matter if this is filed before or after her status expires; though she would really have to trust you to overstay to wait for you to become a US citizen and file with her.

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To the best of my knowledge, if she enters on WVP (which is what ESTA means), she cannot apply for any extensions or status changes. It is a pretty strict rule.

She may also be refused entry since there's a specific visa for this purpose (K visa).

Also, if you apply for citizenship now, the chances for you to complete the process within a couple of months (until the end of September, it's end of July now) are pretty slim.

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  • "she cannot apply for any extensions or status changes." Once he becomes a citizen, she can do Adjustment of Status.
    – user102008
    Jul 28, 2016 at 8:10
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    Here's the USCIS policy memorandum: uscis.gov/sites/default/files/files/nativedocuments/…
    – phoog
    Jul 28, 2016 at 12:55
  • I live in IL and on average it takes 3-4 months to become a citizen. So...if I start applying now then I should be US citizen by end of the year at the latest. If she comes here at the end of Sept, then she can legally stay in US until end of year as well. We would be calling it close. There's other option where she would come at the beginning of Feb. This might be a "safer" option for us.
    – deiviuxs
    Jul 28, 2016 at 14:40
  • @deivuxs, If she comes in September, she risks refusal of entry, which will complicate her future attempts to enter the country. If you want to get married, there is a proper setup for doing just that. Going around that established process invites trouble.
    – ouflak ♦
    Jul 28, 2016 at 16:17
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    @deiviuxs: Because she's coming here to visit her boyfriend with a view to (if things work out) stay and apply for Adjustment of Status during this trip instead of leaving. That makes her an immigrant and it is the job of the CBP to deny her entry for VWP if they suspect this.
    – user102008
    Jul 28, 2016 at 21:07

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