How the 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. The change essentially eliminated the 30/60 day rule and established a stricter standard now known as the “90-day rule.” If you are applying for a green card inside the United States, you should be aware of the rule and how USCIS may use it to make a determination of inadmissibility.
In fact, any nonimmigrant visa holder should be aware of the rule because it may affect how immigration officials perceive attempts to change status. The 90-day rule applies a presumption that a nonimmigrant visa holder made a willful misrepresentation at the time of admission or application for a nonimmigrant visa when that nonimmigrant enters the United States and within 90 days engages in conduct inconsistent with his or her nonimmigrant status. In other words, the State Department assumes fraud if the visitor does anything inconsistent with the purpose of the visa within the first 90 days.
In 2018, USCIS updated its Policy Manual to include the State Department’s 90-day rule as a tool for detecting potential misrepresentation in a variety of cases including adjustment of status. While the manual indicates that the rule is not binding on USCIS, officers should use it to evaluate cases.
Who the 90-Day Rule Affects
The introduction of the 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;
- Enrolling in school without authorization and/or the appropriate change of status; or
- Marrying a U.S. citizen or permanent resident and taking up residence in the United States (in as status not authorized for this purpose); 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.
To determine your entry date, refer to your I-94 arrival/departure record. The 90-day rule applies to your most recent entry to the United States. If you have multiple I-94 records or multiple entries, always refer to that most recent entry.
Nonimmigrant Intent Explainer
When applying for most nonimmigrant (temporary) U.S. visas, the applicant must prove that he or she plans to return home when they complete the stated purpose of the trip. For example, temporary visa categories (such as B, F, J, M, 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. Therefore, 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;
- 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.
RECOMMENDED: Preconceived Intent Explained
Under the 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. If a nonimmigrant attempts to adjust status during this 90-day period, the applicant should expect increased scrutiny of the application. Therefore, many attorneys are now advising their clients to avoid marriage and adjustment of status within at least the first three months of entry.
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, an immigration officer could use this against you. 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 previous 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 misrepresentation.
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 first to ensure there aren’t other factors that affect you.
90-Day Rule Examples of I-485 Applicants
Example: TN Visa Holder
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: Family Preference Entering on Visa Waiver Program
Julian is a 5-year old French citizen whose mother recently obtained a green card. Julian’s mother transports him to the United States through the Visa Waiver Program. Although the VWP is for temporary visits, the intent was to get Julian to the U.S. in order to file Form I-485 and adjust status. As the child of a permanent resident, Julian falls into the family preference category. If Julian adjusts status within the first 90 days of entry, USCIS will likely presume that there was a preconceived intent even though he is child. If Julian adjusts status after 90 days, he will be forced to file Form I-485 while unlawfully present. The Visa Waiver Program visit is valid for 90 days. An applicant from the family preference category cannot file Form I-485 when unlawfully present, and USCIS will likely deny the application. (USCIS may also put the child in removal proceedings.)
Example: Immediate Relative Entering on a B-2 Visa
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. Marta decides that she really enjoys being reunited with family in the United States. Therefore, she files an adjustment of status application just six weeks after entering the U.S. Based on the 90-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 90-day rule, and USCIS likely would 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. Most E-, H-, K-, L-, O-, and P-type visas are dual intent visas.
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Note to Reader: This post was originally published on January 9, 2018, and has been modified with improvements.