In this week's Consulta Migratoria® column I answer a reader's question and explain what the Visa Waiver Program is, who is eligible, and the restrictions.
Each case is different and the answers vary depending on each person's immigration history.
Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.
This is the column:
I am Spanish. On June 25, 2013 I entered the United States through the Visa Waiver Program. I was coming to spend my vacation with my ex-husband and intended to return to Spain to be with my children of 16, 13 and 5 years old which are from another relationship. During my stay in the U.S., my ex-husband and I decided to remarry and the marriage took place on July 20. My husband is a permanent resident of the US.
On September 5, my husband filed a family petition and I filed applications for adjustment of status, work authorization and advance travel authorization with USCIS. We did it this way because when we filed the applications there was an immigrant visa immediately available to me. USCIS accepted our applications and already took my biometrics.
My legal stay expired on September 22 according to the I-94 form given to me by the customs officer when I entered the U.S. On September 25, USCIS sent us a letter asking for evidence that my husband is a citizen in order to process my case further. Is this correct? Will I be able to bring my children to live in the U.S. through my husband's petition? - Ana W.
Ana, there is a good chance that you are not eligible to apply for permanent residence in the United States through an adjustment of status application. Your husband must be a U.S. citizen in order for you to apply for permanent residence in the U.S. because you entered the country through the Visa Waiver Program (VWP).
The VWP allows certain nationals of 37 countries, including Spain, to travel to the United States for tourism or business purposes and for a period of less than 90 days without obtaining a visa. To travel under the VWP a person must demonstrate the following:
1. That you are a citizen of one of the countries currently in the VWP.
2. Possess a machine-readable passport from a VWP participating country.
3. Request entry for a period not to exceed 90 days and only for tourism or business purposes.
4. Possess a round trip ticket issued by an airline or commercial cruise line. This requirement does not apply to persons entering through a land border point in Canada or Mexico.
5. Be admissible to the country. For example, persons with a criminal record or who have been previously denied a visa will not be able to travel under the VWP and will have to apply for a visa.
6. Have obtained a travel authorization through the Electronic System for Travel Authorization (ESTA) prior to travel.
It is not possible to extend the length of stay, nor modify your tourist or business status by traveling under the conditions of the VWP. Adjustment of status applications to obtain permanent residence in the U.S. through marriage to a non-U.S. citizen are also not permitted.
Your children could benefit from the family petition your husband has filed. The children are now your husband's stepchildren and could derive immigration benefits if they meet the proper requirements.
It is extremely important that you consult with an immigration attorney as soon as possible to determine your immigration options. You should avoid staying unlawfully in the U.S. for more than 180 consecutive days because leaving the country after accumulating unlawful presence would subject you to the penalty law which would not allow you to return to the U.S. for a period of 3 to 10 years, unless you are granted a waiver.
If they have been paying someone to do the paperwork, it may be that this person has misadvised you and put you in the crosshairs of the immigration authorities unnecessarily. Please stop using their services and report them to the proper authorities.
English 
Español