This article will explain what the 90 day rule is about, who the rule applies to and the implications of the rule. Read our 2021 guide to learn more details.
If you’re looking forward to changing or adjusting your temporary residency status to permanent, then you should seriously consider the 90 day rule.
This article will explain what the 90 day rule is about, who the rule applies to and the implications of the rule.
This article on the 90-day rule was written to help intending adjustment of status applicants.
What is the 90 Day rule?
According to the 90-day rule, an alien who engages in conduct inconsistent with their nonimmigrant status within a 90 day period of entering the U.S. may become inadmissible for the green card or even permanently barred from entering the US.
Simply put, you could suffer the consequences of the 90 day rule if you enter the US for the sole purpose of applying for permanent residence.
The 90-day rule states that non-immigrant visa holders who marry U.S. citizens or lawful permanent residents or apply for adjustment of status within 90 days of arriving in the U.S. are automatically presumed to have misrepresented their original nonimmigrant intentions.
Certain actions on behalf of an immigrant could trigger the 90 day rule considerations. The most common ones include:
- Getting employed unlawfully
- Enrolling in an educational program without a change of status or the proper authorization
- Being a non-immigrant in a status that prohibits you from coming to the United States to remain permanently in the United States (for example, B, F, J M, Q or TN status who marries a United States citizen or lawful permanent resident and takes up residence in the United States)
- Undertaking any other activity that will legally necessitate a change of status
The 90-day rule will be applied to determine whether a non-immigrant has violated the terms of their nonimmigrant visa.
For example, after entering the United States on a B2 visa (a non-immigrant visa), you married a U.S. citizen and applied for a marriage-based green card within 90 days of your entry to the United States.
In such a case, USCIS would perceive your B-2 filing at U.S. Embassy or Consulate as a willful misrepresentation of your true intention of entering the United States, which constitutes fraud.
Accordingly, you might be barred from entering the United States again.
Under the 90-rule, you would have the burden of proving that, although you acted in a manner inconsistent with your status within 90 days of entry, you, however, did not misrepresent your intentions in seeking a visa, admission, or other benefits.
What are the differences between the 30/60 Rule and the 90 Day Rule?
You may have heard about the older version of this rule, called the 30/60 Rule.
Under that rule, consular and USCIS officials presumed that the immigrant lied if there was conduct (such as working on a student visa or coming to the U.S. to get married and stay permanently on a tourist visa) inconsistent with the terms of the visa that occurred within 30 days of entry to the United States.
Any actions after 30 days but before 60 days were typically not considered to be fraud unless other evidence indicated otherwise.
Conduct that occurred after 60 days of entry did not lead to a presumption of misrepresentation upon entry.
However, with the 90-Day Rule (effective September 2017), a consular officer may presume misrepresentation for actions within 90 days of entry and may also decide that fraud existed long after 90 days have passed if enough evidence supports that finding.
This policy is much broader than the previous one, giving U.S. immigration officials far more discretion in determining whether immigrants lied in obtaining a nonimmigrant visa.
After the end of the 90 day period, there will be no presumption of misrepresentation.
This, however, does not mean you will be entirely off the hook. If there is a reasonable belief that you misrepresented the purpose of the trip, adjustment of status denial will occur once again.
Nonimmigrant Intent Explainer
Every person coming into the U.S. on a temporary visa needs to submit documents to prove they will return 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 programs, 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 U.S. consular officers presume all nonimmigrant applicants have immigrant intent, it is your responsibility as an applicant to prove nonimmigrant intent.
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 ask 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 the intention of leaving the U.S. once your visa expires.
- You have no immediate intention of abandoning your residence abroad.
Once the consular officer is satisfied with your answers and makes sure of your nonimmigrant intent, they will likely grant you the visa.
Single intent vs. Dual intent
Under the 90-day rule, USCIS officers might presume fraud if you violated your nonimmigrant status or engaged in conduct inconsistent with that status within 90 days of entry.
If you are what’s called a “single intent” visa holder (allowing only non-immigrant intent) and you apply for a green card, the officer reviewing your documents might assume that you came to the United States with the single intent of becoming a permanent resident.
If the officer proves that indeed you had different intentions, your application will be denied, and your existing visa could be revoked.
With a “dual intent visa” (allows nonimmigrant and immigrant intent), you have the conditional ability to adjust to permanent resident status after entering the U.S. as a non-immigrant.
Several visas allow for this possibility. Holders of the K-1 fiancé(e) visa, for example, which is granted to foreign fiancé(e), can change their status to permanent U.S. residents after marrying a U.S. citizen.
Dual intent visas like the H-1B or L-1 work visas allow the holder to use the visa while at the same time planning to relocate permanently to the United States.
People with dual intent visas don’t need to worry about the 90 day rule.
However, single intent visa-holders are allowed to change their mind once they’re in the United States, and marry or apply for a green card, as long as they genuinely came to the country with the original intention of leaving.
It is the responsibility of the government to determine whether the applicant originally intended to leave or not.
If you can convince the USCIS officer that indeed you came to the United States without misrepresenting your facts and that you genuinely changed your intentions within the 90 days after arriving in the United States, USCIS may still approve your green card.
Visa Fraud Could Land You a Lifetime Ban
The consequences for misrepresentation or fraud is a lifetime ban from entering the United States.
As with any U.S. visa application or interview with an immigration official or border officer, it is best to remain honest.
While you are not required to divulge every detail, when asked a question, you should answer truthfully.
How to comply with the 90 Day rule
Let’s assume you visited the United States as a tourist and ended up marrying a U.S. citizen.
While it is not against the law to get married in the U.S. while on a tourist visa, it is against the law to misrepresent your intentions to a border official in order to gain admission to the United States.
If you decide to stay in the U.S. and adjust status rather than returning to your home country, you will likely have difficulty convincing USCIS that you did not commit visa fraud by planning to live in the U.S. permanently.
This is true since you will be required to submit marriage evidence with your adjustment of status application.
Evidence might show that you had planned to have a big party after the wedding way before you came to the U.S. and got married two weeks later.
If the USCIS officer flags this as fraud, your green card would be denied, your visa would be revoked, and you might be banned from visiting the United States ever again.
If you do not want to run in trouble with the 90-day rule, you must wait 90 days since your most recent entry date to the United States before seeking to adjust your status.
How do I count the 90 days?
It is important to keep track of the number of days you have spent in the United States.
You can confirm this by checking the most recent entry date from your Form I-94 Arrival/Departure Record and adding 90 days: https://i94.cbp.dhs.gov/I94/#/recent-search
You will not have any trouble with the 90 day rule as long as you don’t file for a green card application before that date.
What happens to recent entries?
The 90-day rule applies from the most recent date on your Form I-94 Arrival/Departure Record.
What this means is that if you travel and come back, the 90 day clock is reset to reflect the most recent date on your Form I-94 Arrival/Departure Record.
How About Multiple Visas?
As the 90-day rule applies to the most recent entry date, it also applies to the most recent visa.
File Your Immigration Forms with bwea.com
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 is important to consult bwea.com to help you go through the process. Start your application now.