The analysis turns on a few high-impact facts: who you married, how you entered (B-2 vs ESTA), how long you overstayed, and whether misrepresentation is an issue.
In many cases, yes—particularly if you are married to a U.S. citizen and you entered lawfully (for example, you were inspected and admitted at the airport or border).
Overstay alone does not automatically bar adjustment of status for immediate relatives in many common fact patterns.
The key gating questions usually look like this:
- Lawful entry: Were you inspected and admitted (B-2 visa) or admitted under ESTA/VWP? Do you have an I-94 record?
- Who is the petitioner: U.S. citizen spouse vs lawful permanent resident spouse (different forgiveness rules and timing).
- Misrepresentation risk: Did you say (or imply) one intent at entry and do something inconsistent immediately after entry?
- Other bars: Prior removal orders, criminal issues, prior denials, or a history that triggers inadmissibility concerns.
Official overview:
USCIS Adjustment of Status.
That said, overstays tend to create practical risk around travel and misrepresentation analysis, which is why sequencing matters.
In many cases, maintaining lawful status becomes much more important.
Entering under ESTA (Visa Waiver Program, or “VWP”) is legally different from entering with a B-2 visa. Many people think ESTA is “just a tourist visa.” It isn’t.
It is a separate program with separate procedural consequences.
By entering on the Visa Waiver Program, you generally give up certain rights that exist in other contexts, including:
- Limited ability to contest removal: VWP cases can move fast, and procedural options are narrower in many situations.
- No extension / no change of status: ESTA admissions are typically limited to 90 days and are not extendable.
- Higher urgency for strategy: If the government initiates action before filing, your leverage and timelines can change quickly.
Despite those limitations, adjustment of status based on marriage to a U.S. citizen may still be possible in many VWP cases—especially when the case is filed promptly and the facts are clean.
The point is not “ESTA means you can’t do it.” The point is: ESTA cases can carry unique procedural risk, so timing and filing posture matter more.
Official overview:
USCIS Visa Waiver Program.
Overstay gets the attention, but in many tourist-entry marriage cases, the real risk question is misrepresentation. That means:
whether the government believes you obtained admission by making a false statement (or presenting a false story) about a fact that mattered to entry.
A few clarifying points help keep this grounded:
- “Preconceived intent” is not automatically fraud. Many people’s lives change. A relationship evolves. Plans shift. The question is whether you were truthful at the time you sought admission.
- Timing is evidence, not a rule. Marrying soon after entry can cause scrutiny, but it does not automatically prove misrepresentation. USCIS looks at the total record.
- Consistency matters. What you said at entry (or in visa/ESTA applications), what you did after entry, and what you claim in your green card filings should not conflict.
Common fact patterns that can create misrepresentation risk:
- Entry as a “tourist” followed by immediate steps that look like a pre-planned immigration strategy (for example, arriving with all immigration filing documents ready to go).
- Prior visa denials, border refusals, or prior immigration filings that conflict with your current story.
- Inconsistent statements about relationship history, intent to return, work plans, or residence.
- Using ESTA/B-2 while actually intending to remain permanently if admitted, and making statements inconsistent with that intent.
How this shows up in real cases: USCIS may focus on the timeline (relationship dates, engagement, wedding planning), travel and living arrangements, and how quickly major life steps happened after entry.
Your goal is not to “explain away” facts—it is to present a coherent, truthful narrative supported by documents.
build a clear timeline, align documentary proof, and avoid avoidable travel or rushed steps that create new problems.
For a deeper treatment of this topic, see:
Fraud & Misrepresentation.
Government references:
USCIS Policy Manual
and
Department of State FAM.
Overstay cases often become travel cases. Departing the United States after accruing certain periods of unlawful presence can trigger the three-year or ten-year bars.
That’s why “I’ll just go home and do consular” can be a high-risk move for some people.
Read this carefully before making travel plans:
Unlawful Presence Bars Explained.
- Confirm lawful admission (I-94 record, entry stamp, ESTA history).
- Decide the path: adjustment of status vs consular processing, based on spouse status and risk factors.
- File Form I-130 with strong marriage evidence.
- File Form I-485 (if eligible) and consider filing I-765 and I-131 as appropriate.
- Biometrics, then interview preparation if scheduled.
- Decision and, if approved, conditional green card rules may apply depending on marriage timing.
USCIS forms:
A clean plan focuses on truthful narrative, proper sequencing, and protecting your options.