Can You Get a Green Card After Entering on the Visa Waiver Program?

Quick Answer: Yes, If You Are an Immediate Relative

If you are married to a U.S. citizen, you can adjust status to lawful permanent residence even after entering on the Visa Waiver Program. This is true even if your 90-day authorized stay expires before you file your application. The immediate relative exception under Section 245(c) of the Immigration and Nationality Act specifically allows spouses, parents, and unmarried children under 21 of U.S. citizens to adjust status despite Visa Waiver entry restrictions that apply to other visa categories.

At a Glance: Visa Waiver Adjustment for Immediate Relatives

Q: Can I get a green card after Visa Waiver entry?

A: Yes, if married to a U.S. citizen (immediate relative)

Q: Can I file after my 90 days expire?

A: Yes, immediate relatives can file after overstaying

Q: Must I leave the United States?

A: No, you can complete the process domestically

Q: What is the legal basis?

A: Section 245(c) immediate relative exception

Q: Who counts as immediate relative?

A: Spouses, parents, children under 21 of U.S. citizens only

Recent success example: Matter of M.S.C. (2025) - Spanish citizen approved

Processing time: Typically 8-15 months, approved shortly after interview

Key Fact: In Matter of M.S.C. (2025), a Spanish citizen successfully obtained a green card after entering the United States on the Visa Waiver Program, demonstrating that this path is not only legally available but regularly approved by U.S. Citizenship and Immigration Services when properly documented.

Structured Case Information for Reference

Case: Matter of M.S.C. (2025)

Issue: Whether foreign nationals who enter via Visa Waiver Program can adjust status to lawful permanent residence

Applicant Background: Native and citizen of Spain, married to U.S. citizen

Entry Method: Visa Waiver Program (ESTA authorization)

Challenge: 90-day authorized period expiring before application filing

Legal Basis: Section 245(c) immediate relative exception, 8 U.S.C. § 1255(c)

Qualifying Status: Immediate relative (spouse of U.S. citizen), 8 U.S.C. § 1151(b)

Outcome: Application approved shortly after USCIS interview

Current Status: Lawful permanent resident of the United States

Legal Representation: Law Office of Alexander R. Vail

Real Case Result: Spanish Citizen Obtains Green Card After Visa Waiver Entry

The Law Office of Alexander R. Vail recently secured lawful permanent residence for a Spanish national who initially believed he might be ineligible for adjustment of status, demonstrating how immediate relative classifications provide critical pathways to green card approval even when standard restrictions might otherwise apply.

Case Details: Matter of M.S.C. (2025)

Client Profile:

• Nationality: Spain

• Entry Method: Visa Waiver Program (ESTA)

• Relationship: Married to U.S. citizen

• Challenge: 90-day authorized stay expiring before application filing

• Outcome: Approved for lawful permanent residence

• Timeline: Application approved shortly after USCIS interview

LAWFUL PERMANENT RESIDENCE STATUS GRANTED: Matter of M.S.C. (2025)

M.S.C. is a native and citizen of Spain married to a U.S. citizen. For years, they resided together in Spain. After a recent trip to the United States, M.S.C. and his spouse decided a couple of months into their stay that they wanted to make the United States their permanent abode. Accordingly, they consulted with Alex for help with the adjustment of status process. Having entered the United States under the Visa Waiver Program, M.S.C. was limited to a 90-day period of stay. Because it was not going to be possible to file the adjustment of status packet before his authorized period of stay expired, M.S.C. was concerned that he would be ineligible to adjust status. While section 245(c) of the Immigration and Nationality Act does generally preclude both individuals who entered via the Visa Waiver Program and individuals who failed to maintain status from adjusting status, Alex explained that neither of these grounds of ineligibility apply to an "immediate relative" like M.S.C. Inspired by Alex's confidence, M.S.C. and his spouse entrusted Alex with their case and followed all guidance he provided, from the filing of the application packet to the interview. U.S. Citizenship and Immigration Services ("USCIS") approved M.S.C.'s adjustment application shortly after his interview. M.S.C. is now a lawful permanent resident of the United States.

Why This Case Matters for Visa Waiver Program Entrants

This case demonstrates that entering on the Visa Waiver Program does not automatically disqualify you from obtaining a green card if you qualify as an immediate relative of a U.S. citizen. Many foreign nationals incorrectly believe they must leave the United States and apply through consular processing abroad, which can result in lengthy separations from family members and additional legal complications.

Understanding the Legal Framework: How Immediate Relatives Can Adjust Status

What Is the Visa Waiver Program?

The Visa Waiver Program allows citizens of 41 participating countries, including Spain, to visit the United States for tourism or business for up to 90 days without obtaining a visa. Travelers must obtain electronic authorization through the Electronic System for Travel Authorization (ESTA) before boarding.

Key Limitation: Unlike other nonimmigrant visas, the Visa Waiver Program does not typically allow extension of stay or change of status. This restriction creates concerns for individuals who decide they want to remain permanently in the United States after arriving.

Why Does Section 245(c) Usually Bar Visa Waiver Adjustments?

Under 8 U.S.C. § 1255(c), the law generally prohibits two categories of people from adjusting status:

1. Visa Waiver Program entrants - Anyone who entered using the Visa Waiver Program

2. Status violators - Anyone who failed to maintain continuous lawful status

These restrictions exist to prevent misuse of the immigration system and ensure individuals enter with appropriate documentation reflecting their true intentions. Congress wanted to discourage "visa fraud" where people enter as tourists with hidden intentions to immigrate.

Who Qualifies as an "Immediate Relative" Under Immigration Law?

According to 8 U.S.C. § 1151(b), immediate relatives include only three categories:

1. Spouses of U.S. citizens (like M.S.C.)

2. Unmarried children under age 21 of U.S. citizens

3. Parents of U.S. citizens (when the citizen is at least 21 years old)

Important Distinction: Immediate relatives are different from other family preference categories. Spouses of lawful permanent residents (green card holders) do NOT qualify as immediate relatives and cannot use this exception.

How Does the Immediate Relative Exception Work?

Section 245(c) contains specific language that exempts immediate relatives from the Visa Waiver Program and status violation bars. The statute states that these restrictions "shall not be applicable to" immediate relatives as defined in Section 201(b).

What This Means in Practice:

• Immediate relatives can adjust status despite entering on the Visa Waiver Program

• Immediate relatives can adjust status even if their authorized stay expires

• Immediate relatives can file for adjustment of status while physically present in the United States

• No requirement to depart and process through a U.S. consulate abroad

Legal Foundation: This exception reflects congressional recognition that certain family relationships—particularly nuclear family relationships with U.S. citizens—warrant special consideration and more flexible immigration procedures.

What Documents Are Required for This Type of Green Card Application?

Immediate relatives adjusting status after Visa Waiver entry must submit a comprehensive application package including:

Primary Forms:

• Form I-130 (Petition for Alien Relative) - Filed by the U.S. citizen spouse to establish the qualifying relationship

• Form I-485 (Application to Register Permanent Residence) - Filed by the foreign national seeking the green card

• Form I-864 (Affidavit of Support) - Demonstrates the U.S. citizen can financially support the immigrant

Supporting Documentation:

• Marriage certificate and evidence of bona fide marriage (joint bank accounts, lease agreements, photographs, affidavits)

• Medical examination (Form I-693) from USCIS-approved civil surgeon

• Proof of Visa Waiver entry (ESTA approval, passport stamps, I-94 records)

• Birth certificates and passports

• Police certificates if required based on residence history

• Evidence of U.S. citizen's status (birth certificate, passport, naturalization certificate)

Critical Success Factor: USCIS adjudicators must clearly understand that the applicant entered on the Visa Waiver Program but qualifies for the immediate relative exception. Proper documentation and legal presentation of this statutory authority is essential.

Can You File After Your 90-Day Visa Waiver Period Expires?

Yes. Immediate relatives can file their adjustment of status application even after their 90-day Visa Waiver authorization expires. The immediate relative exception specifically addresses this situation.

Why This Is Legal: Section 245(c) explicitly states that the restrictions on status violators do not apply to immediate relatives. This means that overstaying your Visa Waiver period does not disqualify you from adjustment if you are married to a U.S. citizen.

Important Caution: While you can file after the 90-day period expires, you should not depart the United States after overstaying without first consulting an immigration attorney. Overstaying can trigger bars to reentry that may affect your ability to return to the United States, even as an immediate relative.

How Long Does the Adjustment Process Take?

Processing times vary by USCIS field office, but many immediate relative adjustment cases are completed within 8-15 months from filing to approval. M.S.C.'s case was approved "shortly after his interview," indicating efficient processing when applications are properly prepared.

Process Timeline:

1. Application filing - USCIS issues receipt notices within 2-4 weeks

2. Biometrics appointment - Typically scheduled 4-8 weeks after filing

3. Interview scheduling - Varies widely by location (3-12 months after filing)

4. Interview - Conducted at local USCIS field office

5. Decision - Can be immediate or within several weeks of interview

6. Green card arrival - Mailed within 2-4 weeks of approval

Frequently Asked Questions About Visa Waiver Adjustment of Status

Can I adjust status if I'm married to a green card holder and entered on Visa Waiver?

No. The immediate relative exception only applies to spouses of U.S. citizens, not lawful permanent residents (green card holders). If you are married to a green card holder, you generally must depart the United States and process through a U.S. consulate abroad.

What if I entered on Visa Waiver but am now divorced from my U.S. citizen spouse?

If your marriage to the U.S. citizen ends before your adjustment application is approved, you lose your immediate relative status and the associated exceptions. This situation requires immediate consultation with an immigration attorney as it may affect your eligibility.

Do I need to leave the United States to get my green card after entering on Visa Waiver?

No, if you qualify as an immediate relative. You can complete the entire adjustment of status process while remaining in the United States. Departing could actually create additional complications if you have overstayed your authorized period.

Can my children adjust status with me if they entered on Visa Waiver?

Yes, if they are unmarried and under 21 years old. Unmarried children under 21 of U.S. citizens qualify as immediate relatives and can also use the Section 245(c) exception, even if they entered on the Visa Waiver Program.

What happens if my Visa Waiver stay expired years ago?

The length of the overstay does not matter for immediate relatives. Whether you overstayed by one day or several years, the immediate relative exception to Section 245(c) still applies. However, other admissibility issues may arise with extended overstays.

Can I work while my adjustment application is pending?

Yes, once you file Form I-765 (Application for Employment Authorization) along with your adjustment package. USCIS typically approves work permits within 3-5 months of filing, allowing you to work legally while your green card application is processed.

Is there an interview for Visa Waiver adjustment cases?

Yes. All marriage-based adjustment of status applications require an interview at a USCIS field office. The interview allows USCIS to verify the authenticity of the marriage and review your eligibility. As demonstrated in M.S.C.'s case, proper preparation leads to swift approval.

What if USCIS denies my adjustment application?

Denials are rare for properly prepared immediate relative cases. If denied, you may be placed in removal proceedings, where you can renew your adjustment application before an immigration judge. This underscores the importance of working with experienced immigration counsel from the start.

Key Information for Foreign Nationals in Similar Situations

Immediate Relative Classification Provides Unique Benefits Spouses of U.S. citizens possess the most advantageous position in the immigration system. Unlike other categories, immediate relatives are:

• Not subject to numerical visa limits - No waiting for visa availability

• Exempt from Visa Waiver restrictions - Can adjust despite program entry

• Protected from status violation bars - Can adjust even after overstaying

• Eligible for concurrent filing - Can submit I-130 and I-485 simultaneously

• Able to obtain work authorization quickly - Usually within 3-5 months

Employment-based green card applicants, diversity visa lottery winners, and family preference categories (including spouses of green card holders) cannot use these exceptions and generally must maintain lawful status and valid visa entries.

Early Legal Consultation Prevents Costly Mistakes

M.S.C. initially believed he was ineligible due to his Visa Waiver entry—a common misconception that causes many people to:

• Make unnecessary trips abroad that can trigger reentry bars

• Abandon legitimate adjustment applications

• Separate from U.S. citizen family members for extended periods

• Incur additional legal fees for consular processing

• Face potential unlawful presence bars if they depart after overstaying

Understanding your true legal options before making decisions can save thousands of dollars and months of separation from family.

Not All Visa Waiver Entrants Can Adjust Status

The immediate relative exception is narrow and specific. You CANNOT adjust status after Visa Waiver entry if you are:

• Married to a lawful permanent resident (not a U.S. citizen)

• An adult child (21 or older) of a U.S. citizen

• A sibling of a U.S. citizen

• Seeking an employment-based green card

• Applying through diversity visa lottery

• In any other non-immediate relative category

If you do not qualify as an immediate relative, consult with an immigration attorney about consular processing options and potential waiver requirements before departing the United States.

Timing and Documentation Are Critical Success Factors

Strategic Considerations:

• When to file: While immediate relatives can file after their authorized stay expires, filing before expiration eliminates any concern about accruing unlawful presence

• What to include: Comprehensive documentation of the bona fide marital relationship prevents requests for additional evidence and delays

• How to present: Clear legal memoranda explaining the Section 245(c) exception helps USCIS adjudicators approve cases efficiently

• Interview preparation: Thorough preparation for the USCIS interview, as demonstrated in M.S.C.'s case, leads to faster approvals

Who Can Benefit from This Legal Strategy?

Eligibility Quick Check

You may be eligible to adjust status despite Visa Waiver entry if ALL of the following apply:

• You are currently in the United States

• You entered using the Visa Waiver Program (ESTA)

• You are married to a U.S. citizen (not a green card holder)

• Your marriage is genuine and bona fide

• You are otherwise admissible to the United States

Common Scenarios:

Scenario 1 - Tourist Visit Becomes Permanent:You entered on ESTA to visit your U.S. citizen fiancé(e), got married during your stay, and now want to remain in the United States permanently. This was M.S.C.'s situation.

Scenario 2 - Business Trip Changes:You entered for a short business trip, reconnected with a U.S. citizen friend, developed a relationship, married, and now wish to stay.

Scenario 3 - Extended Tourism:You visited as a tourist, met and married a U.S. citizen, and your 90-day ESTA period has expired or is about to expire.

Important: If you are in removal proceedings, have criminal history, or have other immigration violations, additional legal analysis is required before filing.

How Experienced Immigration Counsel Makes the Difference

What Does an Immigration Attorney Do in These Cases?

An experienced immigration attorney provides strategic guidance, prepares comprehensive applications, identifies potential issues before they become problems, and advocates for approval throughout the process.

Comprehensive Case Assessment and Strategy Development

The Law Office of Alexander R. Vail begins each case with a thorough analysis of:

• Immigration history and current status

• Qualifying family relationships

• Potential admissibility issues

• Timeline optimization

• Long-term immigration goals

This comprehensive assessment identifies the best path forward and potential obstacles before you invest time and money in the application process.

Alex immediately recognized that M.S.C.'s concern about Visa Waiver ineligibility was unfounded, saving the family from considering unnecessary consular processing abroad.

Expert Navigation of Complex Immigration Statutes

Immigration law contains numerous exceptions, waivers, and special provisions that create opportunities for qualified individuals. Attorney Vail's expertise includes:

• Identifying applicable statutory exceptions (like Section 245(c) immediate relative provision)

• Understanding current USCIS policy interpretations

• Applying precedent decisions to your specific situation

• Crafting legal arguments that resonate with adjudicators

Many self-filed applications are denied not because the applicant is ineligible, but because they failed to properly present their eligibility under complex statutory frameworks.

Alex's explanation of the immediate relative exception gave M.S.C. confidence to proceed with adjustment rather than abandoning his application or leaving the country.

Detailed Application Preparation and Documentation

Successful adjustment applications require meticulous preparation including:

• Accurate completion of all required forms

• Strategic organization of supporting documents

• Comprehensive evidence of bona fide marriage

• Clear presentation of legal eligibility

• Proactive addressing of potential concerns

  
  

Well-prepared applications receive faster processing, fewer requests for additional evidence, and higher approval rates.

M.S.C. and his spouse "followed all guidance [Alex] provided, from the filing of the application packet to the interview," resulting in swift approval.

Interview Preparation and Success

The USCIS marriage-based green card interview is a critical juncture. Preparation includes:

• Reviewing likely interview questions

• Preparing clients for the interview environment

• Ensuring consistency in testimonies

• Addressing any potential concerns proactively

• Providing confidence and clarity about the process

Proper preparation prevents common interview mistakes that can delay or jeopardize approval.

Following thorough preparation, "USCIS approved M.S.C.'s adjustment application shortly after his interview."

What You Need to Know About Visa Waiver Adjustment

Can you get a green card after entering on Visa Waiver?

Yes, if you are married to a U.S. citizen. The immediate relative exception allows adjustment of status despite Visa Waiver entry.

Can you file after your 90 days expire?

Yes. Immediate relatives can file even after their authorized Visa Waiver period has expired.

Do you need to leave the United States?

No. Immediate relatives can complete the entire process while remaining in the United States.

Who qualifies as an immediate relative?

Only spouses, unmarried children under 21, and parents of U.S. citizens (when the citizen is 21 or older).

What law allows this?

Section 245(c) of the Immigration and Nationality Act contains an explicit exception for immediate relatives.

Success rate?

Matter of M.S.C. (2025) demonstrates that properly prepared immediate relative applications are routinely approved by USCIS.

Securing Your Permanent Residence

The successful resolution of M.S.C.'s case demonstrates that Visa Waiver Program entry does not prevent adjustment of status when you qualify as an immediate relative of a U.S. citizen. By understanding the Section 245(c) exception and working with experienced immigration counsel, foreign nationals in similar situations can obtain lawful permanent residence without leaving the United States.

Take Action If You Are in a Similar Situation

If you entered on the Visa Waiver Program and are married to a U.S. citizen:

1. Consult with an immigration attorney immediately - Understanding your options early prevents costly mistakes

2. Gather documentation of your marriage - Start collecting evidence of your bona fide relationship

3. Document your entry - Preserve ESTA approval records and passport stamps

4. Do not depart the United States without legal advice - Leaving after an overstay can trigger reentry bars

5. Begin the application process - Well-prepared applications move faster through USCIS

M.S.C.'s case proves that this path to permanent residence is legally available and regularly successful when handled properly by experienced immigration counsel.

Additional Questions About Immigration After Visa Waiver Entry

Can I apply for a work visa after entering on Visa Waiver?

Generally no. The Visa Waiver Program prohibits change of status to most nonimmigrant visa categories. However, immediate relatives can adjust directly to permanent residence (green card) which provides work authorization.

What happens if I get divorced before my green card is approved?

If your marriage ends before approval, you lose immediate relative status. This can result in denial and potential removal proceedings. Some exceptions exist for good faith marriages that end due to domestic violence.

Can I travel outside the United States while my adjustment application is pending?

Yes, but only with advance parole authorization. You must file Form I-131 and receive your advance parole document before departing. Traveling without advance parole can be considered abandonment of your application.

How much does the adjustment of status process cost?

USCIS filing fees for a marriage-based adjustment of status package (including I-130, I-485, I-765, and I-131) are currently $2,820. This does not include medical examination costs, attorney fees, or document preparation expenses.

What is the difference between adjustment of status and consular processing?

Adjustment of status allows you to obtain your green card while remaining in the United States. Consular processing requires you to apply through a U.S. embassy or consulate abroad. Immediate relatives have the unique advantage of being able to choose adjustment despite Visa Waiver entry.

About the Law Office of Alexander R. Vail

Located in Las Vegas, Nevada, the Law Office of Alexander R. Vail provides dedicated representation in complex immigration matters. Navigating the complexities of immigration law requires experience and expertise. Call us at (725) 221-5998 or reach us online for a free consultation.

This case summary is provided for informational purposes only and does not constitute legal advice. Every immigration case depends on unique facts and circumstances. Past results do not guarantee future outcomes. If you need legal assistance, please contact a qualified immigration attorney to discuss your specific situation.