How the new 90-day rule (and elimination of the 30/60 day rule) may affect your adjustment of status to permanent resident
In September 2017, the U.S. Department of State made a significant change to its Foreign Affairs Manual (FAM). This had a dramatic effect on the way immigration officers evaluate inadmissibility in certain cases. And it may affect future applications for adjustment of status. The change essentially eliminated the 30/60 day rule and established a stricter standard now known as the 90-day rule.
Any nonimmigrant visa holder should be aware of this amendment because it may affect how immigration officials perceive attempts to change status. Although U.S. Citizenship and Immigration Services (USCIS) has not declared an intent to use the 90-day rule also, they previously used the 30/60 day rule as a guideline. Therefore, nonimmigrant visa holders attempting to obtain a green card through adjustment of status should be aware of the 90-day rule.
Who the 90-Day Rule Affects
Both the elimination of the 30/60 day rule and the establishment of a 90-day rule can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.
The FAM suggests the following actions are sufficient to trigger the application of the 90-day rule:
- Engaging in unauthorized employment; or
- Enrolling in a full course of academic study without authorization and/or the appropriate change of status; or
- A nonimmigrant in a status prohibiting immigrant intent marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States; or
- Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.
This article focuses on how the 90-day rule may affect adjustment of status applicants. For the purposes of an adjustment of status application that’s filed soon after a person enters the United States, immigration officials may apply the 90-day rule to help determine if the applicant violated the terms of a nonimmigrant visa.
Nonimmigrant Intent Explainer
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 (and is not authorized) to stay permanently in the United States. In fact, there is a presumption of immigrant intent in U.S. immigration law. So the burden of proof falls 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 official probably 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.
Although USCIS has not updated their Policy Manual with a similar rule, adjustment of status applicants would be prudent to assume the same guideline is in place. For example, many attorneys are now advising their clients to avoid marriage and adjustment of status within at least the first 90 days of entry.
Under the new 90-day rule, there’s a presumption of fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry. This is a significant change from the previous 30/60 day rule, which allowed for the presumption only if the status violation or conducted occurred within 30 days of entry. If a nonimmigrant attempts to adjust status during this 90-day period, the applicant should expect increased scrutiny of the application.
That isn’t to say that there’s always no problem after 90 days. After 90-day period, there is no presumption of misrepresentation. However, if there’s reasonable belief that the nonimmigrant misrepresented the purpose of his or her travel at the time of the visa application or application for admission. For this to happen, there must be circumstance and/or the immigration official must have evidence to makes fraud more likely than not.
Exception for Immediate Relatives of U.S. Citizens
While there is legal precedent that immediate relatives of U.S. citizens are exempt from misrepresentation under the 30/60 day rule, the first 90 days should be considered risky for an adjustment of status. Based on 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 (or even get married) within 90 days of entry, speak to an immigration attorney.
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. E-, H-, L-, O-, and P-type visas are dual intent visas. Learn more about dual intent visas.
This article on the 90-day rule was written help intending adjustment of status applicants. Therefore, if you are a nonimmigrant visa holder who is considering a new activity inconsistent with your nonimmigrant visa (especially adjustment of status) within 90 days of arriving to the U.S., we highly recommend that you seek the advice of an experienced immigration attorney first.
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