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Can you change status of a visa waiver if you are in the US and have a current fiancee visa pending with USCIS?

Pittsburgh, PA |

Have a current fiancee visa pending (engaged to a US citizen) with USCIS as of September 2012. Arrived into US mid October on the visa waiver program and have to leave by mid January (3 months). Previously spent 1 year in the US from August 11 to August 12 on a B1 visa which was extended from the initial 6 months for a further 6 months due to fiance's health issues. Would like to get married and stay in the US without having to return to home country. Is this possible with entering on a visa waiver?

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Attorney answers 5


If you already knew you were not going to leave when you entered with the Visa Waiver Program, your case might be investigated for Visa fraud. You need to consult with an immigration attorney.



No I fully intend to leave before my visa waiver expires. I was asking if there way anyway around that or do I have to return to my home country and wait for the normal processing of the fiancee visa. At this stage we are not getting married as we dont want to do anything to jepordise our fiancee visa application. But we would love to get married now and for me to stay, but realise how that can look so we are prepared to wait and do this corrrectly.


I agree with my colleague.

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


I agree with my colleagues. I would return home and wait.

This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.


Persons entering on the visa waiver, or ESTA, as it is now known, cannot extend status. There may be visa fraud issues in your case, depending on the chronology of your relationship and what facts you have disclosed to U.S. consulate(s) abroad and Customs and Border Protection at your port(s) of entry.

Consult with a competent attorney or BIA-accredited representative before taking any steps towards adjustment of status and before leaving the U.S.


Daniel Green, Esq.
Serving the Hudson Valley, Northeast, and the World Beyond
Location: 684 Aaron Court, Kingston, NY
Mailing Address: PO Box 3238, Kingston, NY 12402

This answer should not be construed as legal advice and should not be relied on to take any action whatsoever; neither does it create a lawyer-client relationship.


Your fiancée visa filing prior to your arrival is likely to trigger an immigrant intent finding and potentially unravel your whole case. You should probably continue with what you've initiated and do it properly.

The information offered is general in nature and not meant to be relied upon as legal advice. Please consult an attorney prior to making legal decisions. Visit us at Contact us at 713.335.5505 or email at Veronica Tunitsky offers in-person, as well as telephone and email consultations.