i-485 for Marriage, Visa Expired, 90 Day Rule? - Help Needed

[Dali10109]

Hi All,

Thank you in advance for your help. I was asked to assist friends of mine with their i-485 (Application to Adjust Status) and i-130 (Petition for Alien Relative) filings last night, and when reviewing their paperwork realized they may be in a sticky situation. Nothing has been filed as of yet. James (the “alien relative” - a citizen of the United Kingdom) is currently in the United States and attempting to obtain a US green card based on his recent marriage to a US citizen.
According to James’s I-94 he last arrived in the United States on 7/15/2021. The “Admit Until Date” is 10/12/2021, and “Class of Admission” is WT. He gained authorization to come to the United States under the Visa Waiver Program / ESTA – the ESTA webpage shows his authorization was approved and expires on 1/25/2022 (5 days from today). His marriage to a US citizen took place on 10/2/2021.
A few things here… First of all, he slightly violated the “90 Day Rule” by getting married within 90 days of entering the US. Second, since the I-94 “Admit Until Date” has passed, this means he is currently in the country illegally, correct? Even though his ESTA visa expires on 1/25/2022?
I’ve gone through this immigration process successfully with my spouse in the past, but these current issues are becoming a bit too much for experience level. Any advice on how they should move forward at this point is greatly appreciated. Please let me know if you need any additional information.

Thanks,
-Dan

[newacct]

ESTA is only for entry. What matters for his stay in the US is his status as given on his I-94. Yes he is out of status, his status having ended on 10/12/2021. Since he is in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), he can apply for Adjustment of Status even when out of status, and even if he entered on the Visa Waiver Program.

The "90 day rule" is a policy in the Department of State's Foreign Affairs Manual. USCIS, which adjudicates Adjustment of Status, is part of the Department of Homeland Security, and is not bound by a "90 day rule". It is not clear what rules USCIS uses to make a determination on whether one misrepresented on entry. Also note that intent to marry is not the same as intent to immigrate -- sometimes people enter as nonimmigrants to marry and then leave.