The importance of evidencing your nonimmigrant intent for purposes of an adjustment of status application
U.S. Citizenship and Immigration Services (USCIS) uses a “30/60 day rule” to evaluate a person’s nonimmigrant intent when certain events occur.
For the purposes of an adjustment of status application that’s filed soon after a person enters the United States, USCIS may apply the 30/60 day rule to help determine if the applicant violated the terms of a nonimmigrant visa.
Therefore, if you enter the U.S. in certain nonimmigrant (temporary) visa categories with the blatant intention of applying for permanent residence (green card), USCIS could potentially your deny application.
Meeting the requirements to adjust status isn’t enough. Before you attempt to file an adjustment of status application, be aware of how USCIS will evaluate your intentions.
When applying for a temporary U.S. visa, most applicants are required to prove that they plan to return home when they complete the stated purpose of the trip. For example, temporary visa categories (such as B, F, E, J, M, O-2, P, Q, TN and visa waiver program visitors) have short-term activities assigned to them. Examples of short-term activities are tourism, business, education, and some employment. Nonimmigrant intent means that the visa holder does not plan to stay permanently in the United States. Instead, the visa holder must have a residence abroad that he or she has no intention of abandoning. In fact, in U.S. immigration law there is a presumption of immigrant intent. So there is a burden of proof on nonimmigrant visa applicants to prove they have sufficient ties to their home country that will compel them to leave the U.S. after the temporary stay.
Proving Nonimmigrant Intent at Your Visa Interview
That’s why an immigration officials asked you certain questions in your visa interview (if you had one). The consular officer may have asked about your financial ties (e.g. property ownership, investments, bank accounts) and employment ties (e.g. employer letter) to your home country. In fact, to prove your nonimmigrant intent, you had to establish that you:
- have a residence abroad; and
- have no immediate intention of abandoning that residence; and
- intend to depart the U.S. upon the termination of the visa.
The consular officer wanted to make sure you had nonimmigrant intent before granting the nonimmigrant visa. Even if you entered the U.S. through the visa waiver program (without an interview), the same rules apply.
Eligibility to Adjust of Status
Sometimes a nonimmigrant visa holder in the United States has the opportunity to convert to permanent resident status and remain in the U.S. permanently as a green card holder. This process is known as adjustment of status. It might happen to an O-2 visa holder that gets sponsored by an employer or an F-1 student that falls in love and gets married to a U.S. citizen.
After submitting an adjustment of status application, USCIS will evaluate your current immigration status and how you obtained it. This evaluation will likely bring into question whether or not you had a “preconceived intent” to stay permanently in the U.S. at the time you were granted a nonimmigrant visa.
Generally, obtaining a nonimmigrant visa for a purpose other than what it was intended is considered visa fraud. Therefore, using a nonimmigrant visa (such as a B-2 visa) to enter the U.S. for the purpose of getting married and adjusting status would generally be a visa violation. It’s possible that USCIS would deny the adjustment of status application.
USCIS 30/60 Day Rule
As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her nonimmigrant visa. The U.S. Department of State created the 30/60 day rule and published it in their Foreign Affairs Manual. USCIS adopted the 30/60 day guidelines and use them to help USCIS officers evaluate the likelihood of visa fraud.
30 Days or Less
If you file your adjustment of status application within 30 days of entering the United States, USCIS officers are trained to presume that you are trying to avoid longer procedures. Specifically, they will assume that you had the “preconceived intent” to adjust status before you even arrived in the U.S. Therefore, they’ll say, you obtained a visa fraudulently to evade the normal screening process abroad for the nonimmigrant visa you really wanted.
It’s not likely that someone would fall in love and get married within 30 days of arriving in the United States. However, it is possible. If you are a rare exception, many immigration attorneys will recommend that you wait to get married and file your adjustment of status application.
If you file the adjustment of status application more than 30 days but less than 60 days of entering the United States, there continues to be significant risk. There is no presumption that you entered in bad faith, but there’s still a strong suspicion that you entered with preconceived intent. In this scenario, you can counter the USCIS officer’s questions with evidence to show a change of circumstances. But it is generally risky to change status within 60 days of entering the U.S.
Over 60 Days
After 60 days, the suspicion that you entered with preconceived intent lessens, but it doesn’t go away. “Intent” is still the keyword. If USCIS uncovers evidence that you had preconceived intent to come to the United States for the purposes of obtaining a green card, they still have the ability to deny the application. An interview or another form that you filed with USCIS could potentially reveal evidence of the preconceived intent.
Exception for Immediate Relatives of U.S. Citizens
There is an exception to the 30/60 day rule for the immediate relatives of United States citizens. Based on legal precedent in two cases (the Matter of Battista and the Matter of Cavazos), immediate relatives of U.S. citizens who wish to apply for adjustment of status are exempt from the 30/60 day rule.
Nonetheless, this is still risky territory. If you entered the United States with a nonimmigrant visa (or visa waiver program or border crossing card) and want to adjust status as an immediate relative within 90 days of entry, speak to an immigration attorney before filing any USCIS forms.
30/60 Day Rule Examples
Example: Preconceived Intent
Jonathan is a 24 year old Canadian citizen who enters the United States with a TN worker visa. Jonathan has been simultaneously pursuing a green card through an employer. The employer completed the PERM process and has an approved I-140 petition. The visa number also became available shortly before Jonathan’s most recent entry to the U.S. on the TN visa. Thus, Jonathan files an adjustment of status application soon after arriving in the U.S. Since Jonathan has immediate access to a green card, the USCIS officer may allege preconceived intent on entering the U.S. on a TN visa so that he can adjust status to permanent resident. Jonathan could have avoided this problem by returning to Canada and applying for a green card through consular processing.
Example: Immediate Relative Exemption
Marta is a 60 year old Costa Rican citizen who applied for and received a B-2 visa to come to the United States to visit her son and her son’s family. When Marta entered the U.S., she had only intended to stay for a short period of time. However, Marta decides that she really enjoys being reunited with family in the United States. Therefore, she files an adjustment of status application just five weeks after entering the U.S. Based on the 30/60 day rule, USCIS could potentially deny Marta’s application for an adjustment of status on the basis of preconceived intent. Without evidence that she changed her mind, the USCIS officer would likely assume that Marta entered the United States on the B-2 visa with the preconceived intent to immigrate permanently. However, since Marta is the immediate relative of a United States citizen, she has significant family ties within the U.S. Therefore, Marta would be exempt to the 30/60 day rule, and USCIS could not deny her adjustment of status application on the basis of preconceived intent.
Dual Intent Visas
A dual intent visa allows a foreigner to enter the United States as a nonimmigrant but retain the option to adjust status to a permanent resident at some point in the future. Several visas inherently contain the possibility that the visitor will become a permanent resident in the U.S. For example, a foreign fiancé uses a K-1 fiancé visa to enter the U.S. and marry a U.S. citizen. Most will remain in the U.S. and adjust status to become permanent residents. Likewise, employers will routinely sponsor a foreigner worker for an H-1B visa and later sponsor the nonimmigrant for a green card. Learn more about dual intent visas.
This article on the 30/60 day rule was written with the intent to help intending adjustment of status applicants before they arrive in the United States with a nonimmigrant visa. If you are a nonimmigrant visa holder who intends to change status within 90 days of arriving to the U.S., we highly recommend that you seek the advice of an experienced immigration attorney.
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