Alright, in the event of me and my boyfriend (he is a US citizen) getting married before the 90 days from my ESTA visa expiring, and if we apply for a change of status, can I stay in the us while the paperwork is being analysed? Or am I required to leave? If so, is there another visa i could get temporarily?

We got engaged during my visit, and the goal is to stay together but it came as a surprise and after two years of visits and long distance (he lived in Sweden, me in Portugal) we're honestly tired of being apart for long periods of time and ready to settle down.

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    I think you can stay, but you will probably get a proper answer shortly. – Tomas By Jan 10 '19 at 11:39
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    Congratulations :) for marriage and new life – Dhaval Solanki Jan 10 '19 at 12:06
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    @jwenting municipal workers are administrative extremely unlikely to know anything about immigration law. But this is definitely a question for Expatriates. – phoog Jan 10 '19 at 13:36
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    You can adjust your status, but there is some kind of 30-60-90 day rule where you have to overcome the presumption that you knew about this before entering the US, essentially. I don't know much about US immigration law and cannot provide a good answer. I'm sure someone else will elaborate on this soon. Congratulations! – la femme cosmique Jan 10 '19 at 13:37
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    @lafemmecosmique the ever-knowledgeable user102008 recently pointed out to me that that rule is a Department of State rule related to the issue of visas so unless there's a similar rule at DHS that may not be a problem. But having evidence that it truly was a surprise probably will be necessary. – phoog Jan 10 '19 at 14:28

Knowing someone who did exactly this in the US very recently, I can say that it is possible to change your status once you are married without having to leave. However the law around it is not clear or simple and you should absolutely definitely talk to an immigration lawyer before attempting this. It's very easy to do something, or fail to do something, that would mean you didn't qualify and were overstaying your VWP limits, causing you lots of problems in the future.

My understanding is that you not only need to be married, but also to have filed the paperwork for the status change, before your VWP period expires. But your lawyer will know, so listen to them not me.

Do not ask a city hall official. There is no reason why they would know immigration law.

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    Immediate relatives can apply to adjust status even if they are out of status, but it is certainly better to apply before the 90 days expire rather than after, in case something goes wrong. – phoog Jan 10 '19 at 14:30

After the marriage, you would be in the Immediate Relative category (spouse, parent, or unmarried under-21 child of a US citizen). Immediate Relatives are eligible for Adjustment of Status in the US even if they entered on the Visa Waiver Program (whereas other categories cannot do AOS from VWP). So yes, you can stay and apply for Adjustment of Status. If you do Adjustment of Status, you cannot leave the US until you get your green card or an Advance Parole, or you will automatically abandon your AOS. The only issue with AOS from VWP is that people who entered on VWP waived any right to a hearing before being deported (except when claiming asylum), so in the unlikely case where the AOS is denied in error, you don't get to challenge the denial in removal proceedings.

  • If the AOS were denied, then, would there be any remedy available? – phoog Jan 10 '19 at 21:20

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