What Is the “90 Day Rule”?

Posted by Frank Gogol

If you’re looking forward to changing/adjusting your temporary residency status to permanent, then you should seriously consider the 90-day rule. It isn’t explicitly stated in the USCIS Policy Manual but is still rigorously followed by USCIS officials. In this article, we’ll explain what the 90-day rule is all about, who the rule applies to, and cases of exception.

What Is the 90-Day Rule?

Many people come to the United States on a non-immigrant temporary visa. The 90-day rule is in place to check for any violation of their nonimmigrant status for the first 90 days from the date of entry. The violation includes any activity that is inconsistent with the temporary status granted. This new 90-day rule replaces the old 30/60-day rule, which essentially served the same purpose.

The rule can be best understood with an example. Let’s say a person comes to the U.S. with a tourist visa but ends up getting married within 90 days. When he/she applies for an adjustment of status to be a lawful permanent resident, the USCIS will check whether the change in status was fraudulent or genuine.

Previously, it was a 30-day rule. If the marriage took place within 30 days from the date of entry, then it would be considered a fraudulent act. Later it got revised to 60 days. So if the marriage took place within 60 days, the USCIS would rule it as an abuse to the granted non-immigrant temporary visa. The current 90-day rule simply broadens the horizon.

Consequences of Breaking the 90-Day Rule

When considering the 90-day rule, you need to know it hasn’t been adopted by the USCIS but is instead followed by the Department of State, which created it. It is just in place to serve as a reference to officials while determining the legitimacy of cases that point to a possible violation of temporary visas.

USCIS officials will immediately presume misrepresentation of intent, but applicants are allowed to present evidence to the contrary. So, there’s a chance you can still make it through the 90-day rule.

In the end, if the USCIS concludes that a violation of your visa did take place, then you will have your petition declined, and your existing visa revoked.

How to Count 90 Days

When you’re counting 90 days, it’s crucial to count it the correct way (and most importantly, the way the USCIS does). The best way is to take your most recent I-94 travel record and add at least 90 days to it. To be on the safe side, you can add 100. Both working days and holidays are counted in the 90-day rule.

Who Does the 90-Day Rule Affect?

The 90-day rule is intended to curb the misuse of conditional green cards, which are provided on a temporary basis. It affects people who are in the U.S. on a non-immigrant visa and applying for an adjustment or change of status.

As soon as they apply for the change/adjustment in status, their past 90 days will be scrutinized for the following activities:

  • Engaging in an unauthorized employment
  • Enrolling in a full-time online/offline course without a relevant and appropriate change of status.
  • Being an immigrant and marrying a U.S. citizen or green card holder.
  • Undertaking any activities for which a change or adjustment in status is required, but they’re engaged in it without changing/adjusting status.

Many other activities can trigger the use of the 90-day rule. While this rule affects applicants applying for adjustment or change of status, it may also be applicable in cases where immediate adjustment to status is necessary upon entering the U.S. This helps officials keep track of violations of nonimmigrant visas.

Nonimmigrant Intent Explainer

Every person coming into the U.S. on a temporary visa needs to submit documents to prove they will return back to their country after the purpose of their trip is served. For certain visa categories, like B, F, J, M, Q, and other visa waiver program, visitors come on a short-term basis for activities which range from tourism to education to temporary employment.

They need to have nonimmigrant intent for these visits, which means they do not plan to stay in the U.S. Since there is a presumption in U.S. immigration law about immigrant intent, it’s the responsibility of the applicant to prove nonimmigrant intent to the USCIS.

Proving Nonimmigrant Intent in a Visa Interview

Now that you know, as an applicant, nonimmigrant intent must be proven; in this section, we’ll go over how to do it.

When you apply for a change or adjustment of status, a meeting will be scheduled with USCIS officials, where they’ll ask you a series of questions. This will also cover nonimmigrant intent. And this is where you can prove your nonimmigrant intent to the officials who can then approve your petition.

The consular officer assigned to your case will ask questions about the financial ties related to your home country, like investments, real estate properties, bonds, bank accounts, etc. They will also probe you about your employment history and current employment situation. Basically, the whole purpose of this interview is to ensure that:

  • You are settled in your home country and have a residence.
  • You have no intention of leaving behind the things you own.
  • You have the intention of leaving the U.S. once your visa expires.

Once the consular officer is satisfied with your answers and makes sure of your nonimmigrant intent, they will likely grant you the visa.

90-Day Rule Exceptions

While the 90-day rule is used for all applicants looking to change/adjust their status, there are exceptions. Immediate relatives of U.S. citizens are exempted from misrepresentation for the first 30/60 days. This is true specifically for two cases (Matter of Battista and Matter of Cavazos). Immediate relatives applying for adjustment of status in these two cases can make use of the 30-60 day rule.

However, there are still risks involved that will ultimately be decided by the USCIS. If you, being an immediate relative, wish to make changes to your status within the first 90 days of entering the U.S., it’s highly recommended to consult with an attorney first.

Dual Intent Visas

Dual intent visas shouldn’t be mistaken for a usual nonimmigrant visa because both are radically different. With a dual intent visa, the visa holder has the conditional ability to adjust to permanent resident status after entering the U.S. as a non-immigrant. This is often fixed, say, for two or three years after entry into the U.S.

Several visas inherently allow for this possibility. Holders of the K-1 fiance visa, for example, which is granted to foreign fiances, can change their status to permanent U.S. residents after marrying a U.S. citizen.

H-1B visa holders who are sourced from other countries to work for U.S. companies can adjust their status after completing their tenure. E, H, K, L, O, and P-type visa holders can adjust too. Check here for more information on this topic.

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Conclusion

When applying for an adjustment to your residency status, it’s best to wait for at least 90 days from the date of entry into the U.S. And if you do, it’s a good idea to consult with an immigration attorney since there is a lack of specificity of the 90-day rule by the USCIS.

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