Yes, marriage is allowed on an ESTA and there are no laws that restrict one’s ability to get married while on an ESTA visit. It is important to note that many individuals with no desire to live in the United States get married in places like Las Vegas or Hawaii. So why are immigration lawyers always asked whether it’s “safe” to get married in the United States while visiting on an ESTA?
The reason for the question seems to be because many of these people go on to apply for permanent residency, and they are concerned that doing so is problematic. The short answer is that marriage while on an ESTA, including a subsequent application for adjustment of status should not be a problem, and we’ve outlined the reason below.
Preconceived Intent
Many individuals are concerned about issues regarding “preconceived intent”. This issue is highly misunderstood and started under the Trump administration, when the Department of State extended the 30/60 day “rule” to 90 days. What is lost here is what this “rule” applies to, who it is applied by, and what it actually means. First, this is not a “rule” but guidance for consular officers at embassies and consulates.
Essentially, the guidance creates a rebuttable presumption that if someone enters the United States with a nonimmigrant visa, and then engages in conduct inconsistent with that visa, a misrepresentation may have occurred. It is very important to note that adjustment of status applications – the process by which people obtain permanent residence through their spouse – are adjudicated by USCIS, not the Department of State, and this rule is not binding upon USCIS. However, USCIS has applied this guidance in certain contexts. It is also important to note that this analytical framework then shifts the burden to the applicant to show, in fact, no misrepresentation occurred. So in no case would marrying your US citizen spouse on an ESTA and applying for a green card result in an automatic denial of your adjustment of status application.
Preconceived Intent for Immediate Relatives
In Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), the Board of Immigration Appeals (BIA) held that “notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative.”
Also, in Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), the BIA further held that in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion, but limited this holding to only immediate relatives.
Therefore, if your spouse is a US citizen and you’ve entered on an ESTA, not only can you get married, but you can apply for permanent residency. However, it is important to discuss your case with a skilled immigration attorney to determine whether any other adverse factors exist, such as a misrepresentation.
Misrepresentation
This issue does become more challenging when the person not only had a preconceived intent but also coupled that preconceived intent with affirmative misrepresentations. Misrepresentations involve a complex area of immigration law, but they generally require a material statement made to a US official for purposes of gaining an immigration benefit, such as admission. It is important to note that failure to volunteer information is not, in itself, a misrepresentation.
Therefore, if you attempted to seek an immigration benefit and did so by providing a misrepresentation to a US government official, you should certainly discuss your case with an immigration lawyer to determine if the misrepresentation is material, and whether you should seek an I-601 Waiver for that misrepresentation.
Conclusion
There is a lot of confusion regarding preconceived intent, and this is because it is often conflated with misrepresentations. Preconceived intent, alone, is not sufficient to bar the approval of your adjustment of status application based on marriage to an immediate relative. However, if there is more than “preconceived intent,” you should discuss your case with an immigration attorney.