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Adjustment of Status and ESTA

Due to Covid, many visiting spouses found themselves unable to leave the US. If the visiting spouse entered on a visitor visa (B2), and had been granted a typical 6 month stay, then often there was no issue and the spouse was able to leave the US before the expiration of their stay. However, what if the visiting spouse entered on a visa waiver (ESTA)? The period of stay is only 90 days, and this might not be sufficient if borders were closed and leaving was an impossibility.

While the ESTA is designed as a completely temporary entry, those married to US citizens and with changed circumstances, may be able to switch their spousal visa set to interview abroad to an adjustment of status that can be processed in the US. Even if an ESTA entrant has overstayed, as long as their spouse is a US citizen, they may be able to continue with their green card process while remaining in the US. Since this is a complication in a marriage-based green card case, it is wise to consult with an immigration professional before proceeding.

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