Entered the United States With ESTA? Asylum, Marriage, Green Cards, and ICE Removal Orders Explained
What South Florida Immigrants Need to Know Before Filing for Asylum or Trying to Adjust Status Through Marriage
Many people enter the United States from countries such as Italy, Spain, France, Germany, the United Kingdom, Chile, and other participating countries without obtaining a traditional tourist visa. Instead, they travel through the Visa Waiver Program (VWP) after receiving authorization through ESTA — the Electronic System for Travel Authorization.
ESTA can make travel to the United States easier, but it comes with an important legal tradeoff that many travelers do not understand until they have an immigration problem.
A person admitted through the Visa Waiver Program generally receives only 90 days in the United States, and as part of using the program, the traveler generally waives important rights to contest removal.
That waiver can dramatically affect what happens if the person overstays, files for asylum, marries a United States citizen, or later finds himself or herself in Immigration Court.
For immigrants living in Miami, Fort Lauderdale, Broward County, Palm Beach County, and throughout South Florida, understanding these distinctions can be critical.
ESTA Is Not Actually a Visa
ESTA is not a visa.
ESTA is an electronic travel authorization that allows eligible citizens or nationals of Visa Waiver Program countries to travel to the United States and request admission without first obtaining a B-1/B-2 visitor visa.
A traveler admitted under the Visa Waiver Program normally receives permission to remain for up to 90 days. Italy, for example, is currently one of the countries participating in the Visa Waiver Program.
The important difference is not merely the 90-day limitation.
Under INA §217(b)(2), 8 U.S.C. §1187(b)(2), a person using the Visa Waiver Program generally agrees to waive the right to contest removal, except through an application for asylum.
That waiver can later become extremely important.
What Happens If Someone Overstays ESTA?
Suppose a person enters Miami International Airport or Fort Lauderdale-Hollywood International Airport through ESTA and is admitted for 90 days.
If that person remains after the authorized period expires, he or she does not necessarily receive the same type of removal proceedings that someone with a traditional visa might receive.
Under 8 C.F.R. §217.4(b), DHS can determine that a Visa Waiver Program overstay is removable administratively, without first placing the person into ordinary removal proceedings under INA §240 before an Immigration Judge.
This is one of the most important differences between an ESTA/VWP case and an ordinary immigration case.
The person may therefore face an ICE administrative removal process rather than the familiar procedure involving a Notice to Appear, Form I-862, followed by ordinary removal proceedings.
What Does ICE Do Administratively?
ICE has a specific procedure for Visa Waiver Program removals.
ICE’s own directive describes documents that may include a VWP Notice of Intent to Issue a Final Administrative Removal Order and ultimately a VWP Final Administrative Removal Order. ICE’s directive identifies the final order as Form 71-060.
ICE’s procedures require the agency to create a record supporting removability. That record can include the person’s I-94 information, ESTA records, passport records, Form I-213, and other evidence establishing the Visa Waiver admission and alleged violation.
If ICE determines that removability has been established, an authorized ICE official may issue the administrative VWP removal order.
This is important because a person may believe:
“I have never been ordered removed because an Immigration Judge never ordered me removed.”
That assumption can be wrong.
A Visa Waiver Program removal order may have been issued by ICE rather than by the Immigration Judge.
For that reason, one of the first questions an immigration attorney should investigate in an ESTA overstay case is whether ICE has already issued a final administrative removal order under INA §217 and 8 C.F.R. §217.4.
What Happens If an ESTA Entrant Files for Asylum?
A Visa Waiver Program entrant still has the ability to seek protection from persecution.
If the person applies affirmatively for asylum with USCIS and USCIS does not approve the application, DHS may refer the applicant to Immigration Court using Form I-863, Notice of Referral to Immigration Judge.
But this is not the same thing as ordinary removal proceedings.
It is called an “asylum-only proceeding.”
Under 8 C.F.R. §1208.2(c), Visa Waiver applicants and overstays may be placed into asylum-only proceedings.
The Immigration Judge’s authority is therefore much narrower than in a normal removal case.
What Can an Immigration Judge Grant in an ESTA Asylum-Only Case?
In an asylum-only proceeding, the Immigration Judge generally may consider three principal forms of protection:
- Asylum: Protection for an applicant who qualifies as a refugee because of past persecution or a well-founded fear of persecution on account of a protected ground.
- Withholding of removal: Protection that may prevent removal to a country where the applicant’s life or freedom would more likely than not be threatened on account of a protected ground.
- Convention Against Torture protection: Protection for someone who establishes the required likelihood of torture if returned to the proposed country of removal.
EOIR’s current Immigration Court Policy Manual confirms that asylum-only proceedings are restricted to asylum, withholding of removal, and protection under the Convention Against Torture.
What the Immigration Judge generally cannot do in an ESTA asylum-only case is just as important.
The Judge generally cannot use that proceeding to decide adjustment of status through marriage, cancellation of removal, ordinary waivers of inadmissibility, or other relief normally available in INA §240 removal proceedings.
The regulation specifically prohibits the parties from raising other issues such as admissibility, deportability, waivers, and other forms of relief.
Can the Immigration Judge Decide That the Government Wrongfully Put Someone in Asylum-Only Proceedings?
Generally, no.
In Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015), the Board of Immigration Appeals held that neither the Immigration Judge nor the BIA has jurisdiction to decide whether DHS improperly instituted asylum-only proceedings under the Visa Waiver Program.
That creates an unusual procedural situation.
A lawyer may believe there is a legitimate dispute concerning whether the client actually entered under the Visa Waiver Program or whether a legally sufficient waiver exists, but the Immigration Judge handling the asylum case may not have authority to adjudicate that threshold challenge.
Those issues may have to be preserved and pursued through other legal avenues.
What If the ESTA Entrant Marries a United States Citizen?
This is where Visa Waiver cases become particularly complicated.
Federal immigration law contains an important exception for immediate relatives of United States citizens.
Under INA §245(c)(4), 8 U.S.C. §1255(c)(4), the general statutory prohibition against adjustment of status by a Visa Waiver Program entrant does not apply to an “immediate relative” as defined by immigration law.
A spouse of a United States citizen is generally an immediate relative.
Therefore, merely entering through ESTA does not automatically prevent someone from obtaining a green card through a bona fide marriage to a United States citizen.
But that does not mean every ESTA overstay who gets married can simply file an I-485 and receive a green card.
There are major issues involving timing, jurisdiction, ICE enforcement, discretionary approval, and whether a §217 removal order has already been issued.
Adjustment During the Original 90-Day ESTA Period
The cleanest situation is generally where the foreign national:
entered lawfully under the Visa Waiver Program, married a United States citizen in a legitimate marriage, remains otherwise admissible, and files the appropriate marriage-based adjustment package while still within the original authorized VWP period.
The statutory immediate-relative exception permits such adjustment.
But even then, adjustment of status is not automatic.
The applicant must establish eligibility under INA §245(a), including inspection and admission or parole, eligibility for an immigrant visa, admissibility for permanent residence, and immediate visa availability.
What If the 90 Days Have Already Expired?
This becomes more complicated.
USCIS issued specific guidance concerning immediate relatives who entered under the Visa Waiver Program and overstayed.
Under USCIS Policy Memorandum PM-602-0093, USCIS historically has recognized that, unless ICE has already issued a removal order under 8 C.F.R. §217.4(b), USCIS may exercise discretion to approve adjustment of status for the immediate relative of a United States citizen even when the I-485 was filed after expiration of the 90-day VWP admission.
The same memorandum states that when ICE has already issued the §217 removal order, USCIS generally should deny adjustment as a matter of discretion unless ICE rescinds or withdraws that order.
That distinction can determine the entire strategy.
No ICE §217 Order Yet
There may still be an opportunity to seek adjustment through USCIS, depending upon all facts of the case.
ICE §217 Order Already Issued
The case becomes considerably more difficult. An approved marriage petition does not, by itself, erase the ICE removal order.
Counsel may need to investigate whether ICE will withdraw or rescind the administrative order or whether another legal challenge is available.
Does Filing an I-130 Stop Removal?
No.
This is a common and dangerous misunderstanding.
A United States citizen spouse may generally file Form I-130, Petition for Alien Relative, to establish the qualifying marriage.
But an I-130 is not a green card.
An approved I-130 establishes the family relationship. It does not by itself grant lawful status, cancel an overstay, eliminate an ICE removal order, or prevent ICE from enforcing an existing order.
The foreign spouse must separately establish eligibility for permanent residence.
Does Filing an I-485 Stop ICE?
Not automatically.
Likewise, merely filing Form I-485, Application to Register Permanent Residence or Adjust Status, should not be assumed to create protection from enforcement.
This is particularly important with Visa Waiver entrants because the individual has ordinarily waived many of the procedural protections that exist in regular removal proceedings.
An attorney therefore needs to determine the client’s entire procedural history before filing.
That investigation may include the I-94, passport used for admission, ESTA records, USCIS asylum file, Immigration Court record, Form I-863, ICE records, and any Form 71-060 administrative removal order.
What If the Person Gets Married After Immigration Proceedings Have Already Started?
Another important rule applies.
Under INA §245(e), when a foreign national marries while administrative or judicial proceedings concerning the person’s right to remain in the United States are already pending, immigration law places additional scrutiny on the marriage.
There is a bona fide marriage exception, but the applicant generally must establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of obtaining an immigration benefit. 8 U.S.C. §1255(e)(3).
Related restrictions also appear in INA §204(g), 8 U.S.C. §1154(g) concerning approval of the immigrant petition.
That means a couple who marries after the asylum case has already begun should expect USCIS to examine the marriage carefully.
Evidence may include joint residence, bank accounts, insurance, tax filings, photographs over time, travel, communications, children, estate planning, beneficiary designations, affidavits, and evidence showing that the couple actually shares a married life.
Marriage alone is not enough.
What Has the Eleventh Circuit Said?
South Florida falls within the United States Court of Appeals for the Eleventh Circuit, so Eleventh Circuit decisions are particularly important.
In Phillips v. U.S. Attorney General, No. 18-13178 (11th Cir. Oct. 8, 2019), an unpublished decision, the Eleventh Circuit discussed a Visa Waiver entrant seeking adjustment of status.
The court recognized that a VWP participant may qualify for adjustment through an immediate-relative petition, but it also upheld the conclusion that the Immigration Judge did not have jurisdiction to adjudicate adjustment once the case was within the restricted Visa Waiver/asylum-only framework.
Although an unpublished Eleventh Circuit decision is not binding precedent in the same manner as a published decision, Phillips is particularly relevant to Florida practitioners because it illustrates the jurisdictional problem facing ESTA overstays.
The lesson is simple:
Being eligible for marriage-based adjustment under the statute does not necessarily mean the Immigration Judge has authority to grant it.
USCIS Has Also Become More Aggressive About Adjustment of Status
There is another reason these cases require careful preparation in 2026.
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, emphasizing that adjustment of status under INA §245 is discretionary and characterizing it as an extraordinary form of administrative relief rather than something automatically granted merely because an applicant satisfies the basic statutory requirements.
The statute itself has not eliminated the immediate-relative exception for Visa Waiver entrants.
But the current policy environment means an applicant should expect USCIS to look carefully at the entire immigration history and discretionary record, not simply the existence of a valid marriage.
Overstays, prior immigration violations, inconsistent statements, fraud concerns, criminal history, prior removal actions, and other adverse factors can become very important.
Likewise, favorable evidence such as strong family ties, good moral character, community involvement, tax compliance, hardship to United States citizen family members, employment history, and other equities may become increasingly important.
Does Filing for Asylum Protect Someone From the Visa Waiver Rules?
Not completely.
Filing for asylum allows a Visa Waiver entrant to seek protection and receive an asylum hearing.
But filing asylum does not transform the case into ordinary INA §240 removal proceedings.
The individual may remain in the much narrower asylum-only proceeding, where the Immigration Judge’s authority remains limited.
This distinction surprises many people.
A person could therefore have a legitimate United States citizen spouse and even an approvable I-130 while simultaneously being in an Immigration Court proceeding in which the Immigration Judge has no jurisdiction to grant the marriage-based green card.
That is why coordination between the USCIS case, ICE case, and Immigration Court case is essential.
Can Someone Appeal an Asylum-Only Decision?
Yes.
EOIR currently provides that a decision of an Immigration Judge in an asylum-only proceeding may be appealed to the Board of Immigration Appeals.
But the appeal remains centered on the forms of protection available in asylum-only proceedings.
It generally does not transform the case into ordinary removal proceedings where the applicant can suddenly request every other form of immigration relief.
What About Immigration Bond?
Visa Waiver cases also present unusual detention issues.
In Matter of Werner, 25 I&N Dec. 45 (BIA 2009), the Board held that an individual admitted under the Visa Waiver Program who was not placed into ordinary §240 proceedings through an NTA did not have the ordinary right to seek a bond redetermination from an Immigration Judge.
That is because asylum-only proceedings initiated through Form I-863 are different from normal removal proceedings initiated through Form I-862.
Therefore, an ESTA overstay who is detained should not assume that the Immigration Judge can simply schedule an ordinary bond hearing.
Why the ICE Administrative Removal Order Is So Important
For an ESTA overstay who has married a United States citizen, one of the first questions counsel should ask is:
Has ICE already issued a Visa Waiver Program Final Administrative Removal Order under INA §217?
That answer can materially affect whether USCIS will entertain or approve the I-485.
The order may not look like a normal Immigration Judge removal order.
It may exist inside ICE’s records, EARM/ENFORCE records, or the A-file.
Therefore, checking only the EOIR automated case system or looking only at the Immigration Judge’s orders may not answer the question.
An immigration attorney may need to contact ICE/ERO, communicate with OPLA, review the A-file, and obtain ICE and CBP records.
A Typical South Florida ESTA Case
Consider this example.
A European citizen enters the United States through Miami under ESTA. The person is admitted for 90 days but does not depart.
Later, the individual files an affirmative asylum application with USCIS.
USCIS does not grant asylum and refers the person to the Miami Immigration Court on Form I-863.
While the asylum case is pending, the person marries a United States citizen.
There may now be several separate legal questions:
Is the marriage bona fide?
Can the United States citizen spouse file an I-130? Usually, yes.
Is the foreign spouse statutorily within the immediate-relative exception to the VWP adjustment bar? Potentially, yes.
Can the Immigration Judge adjudicate the I-485 in the asylum-only case? Generally, no.
Can USCIS adjudicate the I-485? Possibly, depending on the procedural posture and other eligibility issues.
Has ICE already issued a §217 administrative removal order? This may be decisive.
Will ICE agree to withdraw or rescind an existing order? That becomes a separate discretionary and strategic question.
Can the person continue litigating asylum, withholding, and CAT while pursuing the marriage case? Depending on the circumstances, counsel may need to pursue those tracks simultaneously.
There is no single form that resolves all of these issues.
The Biggest Mistake: Assuming Marriage Automatically Fixes the Case
Marriage to a United States citizen is one of the strongest family-based immigration relationships under American immigration law.
But marriage is not a magic eraser.
It does not automatically eliminate an ESTA overstay.
It does not automatically cancel an ICE administrative removal order.
It does not automatically convert asylum-only proceedings into regular removal proceedings.
And it does not automatically give an Immigration Judge jurisdiction over an I-485.
At the same time, a genuine marriage to a United States citizen can create an extremely important immigration opportunity because Congress specifically preserved an adjustment exception for immediate relatives under INA §245(c)(4).
The challenge is determining where, when, and how that adjustment application can legally be adjudicated.
Before Filing Anything, Know What Case You Actually Have
An ESTA/Visa Waiver case should be analyzed differently from an ordinary tourist-visa overstay.
Before deciding whether to file asylum, an I-130, an I-485, or another application, an attorney should determine:
the exact manner of admission; the passport used; the I-94 classification; whether ESTA/VWP was actually used; when the 90-day period expired; whether asylum was filed; whether an I-863 has been issued; whether asylum-only proceedings are pending; whether ICE has issued a §217 administrative removal order; whether the marriage occurred before or during immigration proceedings; whether the marriage is bona fide; whether any grounds of inadmissibility exist; and whether other immigration or criminal issues affect discretionary approval.
Once ICE has acted, options that may once have existed can become much more difficult.
South Florida Immigration Cases Require a Coordinated Strategy
ESTA cases can involve CBP, USCIS, ICE/ERO, ICE Office of the Principal Legal Advisor, the Immigration Court, and potentially the Board of Immigration Appeals — all in the same case.
That is why an ESTA overstay with an asylum case and a United States citizen spouse should not be treated as a routine marriage adjustment case.
The attorney may need to litigate the asylum case while simultaneously protecting the marriage petition, investigating the ICE administrative record, determining whether USCIS retains a viable adjustment pathway, and preserving challenges relating to the Visa Waiver proceedings.
Conclusion
Entering the United States through ESTA provides convenience, but that convenience comes with significant restrictions.
A Visa Waiver entrant generally gives up the ordinary right to contest removal except through asylum-related protection. If the person overstays, ICE may issue an administrative removal order without the ordinary Immigration Court process.
If asylum is filed, the person may receive a hearing before an Immigration Judge — but that hearing is normally limited to asylum, withholding of removal, and Convention Against Torture protection.
Marriage to a United States citizen can create a separate and potentially powerful path toward permanent residence because immediate relatives are specifically excepted from the general Visa Waiver adjustment bar.
But timing is critical.
The existence of an ICE §217 removal order, the timing of the marriage, the timing of the adjustment filing, the procedural posture of the asylum case, admissibility, and USCIS’s discretionary analysis can determine whether the case succeeds.
For anyone in Fort Lauderdale, Miami, Broward County, Miami-Dade County, Palm Beach County, or elsewhere in South Florida who entered through ESTA and is now considering asylum or marriage-based adjustment, the immigration history should be carefully reviewed before another application is filed or another hearing takes place.
International Law Office of Gabriel Jose Carrera, P.A.
Florida Immigration Attorney
Serving Fort Lauderdale, Broward County, Miami-Dade, Palm Beach County, and immigration clients throughout Florida and the United States.
This article provides general educational information and is not legal advice. Immigration law is highly fact-specific, and policies and procedures can change. Anyone facing an ESTA overstay, asylum-only proceedings, detention, or a Visa Waiver Program removal order should obtain individualized legal advice concerning his or her particular circumstances.
Legal Authorities: INA §§201(b)(2)(A)(i), 208, 217, 241(b)(3), 245(a), 245(c)(4), and 245(e); 8 U.S.C. §§1151, 1158, 1187, 1231, and 1255; 8 C.F.R. §§217.4 and 1208.2(c); Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015); Matter of Werner, 25 I&N Dec. 45 (BIA 2009); Phillips v. U.S. Attorney General, No. 18-13178 (11th Cir. Oct. 8, 2019) (unpublished); USCIS PM-602-0093; USCIS PM-602-0199.
