My Visa Waiver has expired. I am now married to a US Citizen. Can I obtain a green card inside the US?

In this video, Attorney Jacob J. Sapochnick Esq. discusses one of your frequently asked questions: I entered the United States on the visa waiver program 2 years ago. My stay has now expired. Recently, I married a US Citizen. Can I get my Green Card inside the US?

Overview: 

This question comes to us from a follower in Kansas City. He says: I am an Italian national that entered the United States on the visa waiver program 2 years ago. My visa waiver has now expired. I married a US Citizen recently. Can I get my green card within the United States?

Firstly, the visa waiver program grants foreign nationals from eligible countries, the ability to travel to the United States for tourism or business for stays of 90 days or less without first obtaining a visa. Once a foreign national overstays this 90-day period, however, that individual loses most of their rights including their right to apply for permanent residency (green card).

Secondly, marriage to a U.S. Citizen creates somewhat of an exception. If USCIS suspects that you entered the United States on the visa waiver program for the purpose of marrying a U.S. Citizen or for the purpose of immigrating to the United States, and not for tourism or business purposes, your green card application will likely be denied. Immigration officers often look to the actions of the foreign national to determine their ‘intent’ upon entry to the United States. For example, if you entered the United States using the visa waiver program and married a U.S. Citizen shortly upon your arrival, the immigration officer would be unconvinced that your intent was to enter the United States for tourism or business purposes. The burden of proving that your intent was not to immigrate to the United States rests on you, the applicant.

In summary, you may file for adjustment of status but it may be difficult to be approved. You must be ready to demonstrate that your intentions were not to immigrate to the United States upon entry and you must explain the reasons behind your overstay to be successful. It is recommended that you consult an experienced immigration attorney in your state, because states have different ways in which they deal with these matters. Some states follow a ‘discretionary’ basis, while others do not.

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