When a foreigner wants to obtain a green card while being in the U.S., it may happen that he or she rushes things and apply their adjustment of status application before a certain period of time expires. Such practice can cause severe consequences, so it is essential to be informed about what you should and shouldn’t do while in the U.S. on most temporary visas and think it through before making any wrong steps that can cost you staying and living in the U.S.
Here we will discuss 90-day rule and some other information that will be helpful on your green card journey.
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Maintaining Nonimmigrant Status For Certain Visa Categories
Firstly, it is important to understand how U.S. immigration laws prevents misusing the immigration rights.
The U.S. Department of State made a change to its Foreign Affairs Manual by defining a tool for detecting potential misrepresentation. This change affects the process of inadmissibility evaluation in some instances.
The change included eliminating the previous rule by establishing a stricter standard known asthe “90-day rule.”Using the this rule, USCIS officials apply a presumption that a nonimmigrant visa holder made a willful misrepresentation at admission or application for a nonimmigrant visa when he or she enters the U.S. and within 90 days engages in conduct inconsistent with his or her nonimmigrant status.
If you are on your way to applying for a green card from the United States or changing and adjusting your temporary residency status, it is essential to get the correct information about the 90-days rule and how USCIS officials may use it to decide on your inadmissibility.
The Short Nonimmigrant Intent Explainer
When applying for most nonimmigrant visas, the applicant must prove that he or she plans to return to the home country upon the trip’s purpose is completed.
Temporary visa categories are B, F, J, M, Q, TN, and visa waiver program visitors. Those visas have short-term activities, such as tourism, business, education, and some temporary employment.
‘Nonimmigrant intent’ means that the visa holder did not plan to stay permanently in the U.S., so he or she only needed the temporary visa when entering the U.S. The U.S. immigration law recognizes a presumption of immigrant intent and imposes the burden of proof on nonimmigrant visa applicants. They have to prove nonimmigrant intent and that they have sufficient ties to their home country (financial ties, immediate relatives, etc.) to compel them to leave the U.S. and not abandon their residence abroad.
Applying for the Marriage Green Card
If you recently married a green card holder or a U.S. citizen, do not rush to adjust your status because, as we said previously, the U.S. Citizenship and Immigration Services (USCIS) designed the 90-day rule to stop people from using temporary use visas for unintended purposes. In the green card process, your application will be intensely scrutinized.
What is the 90-day rule?
The 90-day rule refers to a presumption that a nonimmigrant visa holder made a willful misrepresentation at admission or application for a nonimmigrant visa when that nonimmigrant enters the U.S. and within 90 days engages in conduct that is not allowed with their nonimmigrant status.
The Policy Manual that was changed in 2018 indicates that the 90-day rule is not binding on USCIS but it helps officers to evaluate cases and determine whether the green card applicant applying from within the U.S. misled government officers when granted a visa or admitted to the country.
Can You Still Convince Immigration Official if You Adjust Status Before 90 day Period Expires?
Visa holders who filed their application within 90 days may still convince USCIS officers that their original intent was genuine.
This will especially be the case for applicants whose personal or professional situation changes significantly and unexpectedly during their first 90 days. But, remember that proving nonimmigrant intent is not easy, so it’s highly advisable to avoid any conducts that could raise officers’ concerns over the 90-day rule.
90-Day Rule Vs the 30/60-Day Rule
Before Policy Manual changes, USCIS used a “30/60 rule” to evaluate an applicant’s non-immigrant intent.
Adjusting Status Within 30 Days
Applicants who wants to adjust his or her nonimmigrant status within 30 days of entering the U.S. were presumed to involve misrepresentation of purpose, and often, they were denied.
Adjusting Status Between 30 and 60 Days
Applicants who filed their applications for adjustment of status between 30 and 60 days of entering the U.S. immigration officials found suspicious, but their applications were not necessarily disqualified. Applicants who waited at least 60 days after entering the United States to file their adjustment of status applications were generally not problematic.
What Has Changed For Green Card Applicants?
The current 90-day rule, which is stricter than the 30/60, applies to all applicants. USCIS officers will find that applicants misrepresent their original intentions in case they marry a U.S. citizen or lawful permanent resident or apply for an immigrant visa within 90 days of entering the U.S. if they cannot prove otherwise.
Also, the 90-day rule means that foreigners admitted to the U.S. for up to three months, such as many visa-waiver program and users, have limited scope to adjust permanent resident status without triggering the 90-day rule.
Who the 90-Day Rule Affects?
The 90-day rule applies to all nonimmigrant visa holders who entered the U.S. to stay temporary.
The 90-day rule doesn’t apply to those holding a dual intent visa (H, L visas).
During the first 90 days upon entering the U.S., a “single-intent” visa holder can not:
- Engage in unauthorized employment
- Enroll in an unauthorized course of study (without a proper student visa)
- Enter into a marriage with a U.S. citizen or green card holder
- File an “adjustment of status” application (Form I-485)
If non immigrant visa holders take any of these actions within 90 days after entering the U.S., government officers could determine they misrepresented the original intent if specific evidence arises during their application process. If you mention during the visa interview that you originally came to the U.S. intending to remain, you could face problems even if you were married or applied for a green card more than 90 days after you entered the country.
You can refer to your I-94 arrival/departure record to determine your entry date. The 90-day rule applies to your most recent entry to the U.S. If you have multiple I-94 forms or multiple entries, always refer to that most recent entry.
How it Affects Dual intent visas?
Like the H-1B or L-1 work visas, some U.S. visas are known as“dual intent.”Dual intent means the visa holder can use the visa while simultaneously planning to relocate permanently to the U.S.
Dual intent visa holders don’t need to worry about the 90-day rule.
People holding “single intent” visas and those using the Visa Waiver Program / ESTA — aren’t allowed to come and remain permanently in the U.S. So, by marrying or applying for a green card, they risk being found to have misrepresented their original intent.
Crucially, “single intent” visa-holders can change their minds once they’re in the U.S. and marry or apply for a green card. Since they came to the U.S. to stay temporary and according to their status, they were granted a certain visa. But, now their intention to apply to become lawful permanent residents raises questions and, most importantly, the government’s concern about whether an applicant initially intended to leave or not.
To tackle this problem, United States Citizenship and Immigration Services USCIS designed the 90-day rule, stating that temporary visa holders who marry a United States citizen or a lawful permanent resident or apply for a green card within 90 days upon arrival in the U.S. will be presumed to have violated the terms of a nonimmigrant visa.
How to Count 90 Days?
When thinking of applying the 90-day rule to your situation, you need to know how many days you have already spent in the U.S. To figure this out, you should look at the most recent entry date from your I-94 travel record (the “Form I-94 Arrival/Departure Record”).
On this date, you should add 90 days, and you will gate the date, which is the last one counted in the application of 90 days rule to your entry.
How does It Affect Repeated Entries?
This rule applies to your most recent entry only. If you stay more than 90 days on one stay, leave the U.S. and then return, this action will reset the “90 day clock.”
You have to wait for 90 days to avoid breaking the rule before applying for an adjustment of status application or before marrying a green card holder or a U.S. citizen.
How does the It Affect Multiple Visas Holders?
Again, the 90-day rule will be applicable only to your most recent visa. So, if you visited the U.S on a H-1B visa and later left and returned using the single-intent Visa Waiver Programs, only the most recent entry and visa status would be considered.
What To Expect If You Break The 90-day Rule
Immigration officials are not obliged to follow this rule strictly. Instead, it only serves as guidance for government officers when assessing visa applications. As we stressed out thought this article, USCIS officers use the 90-day rule to determine whether the applicant misrepresented the original intent when first seeking a visa and traveling to the U.S.
Even though in theory you could convince the officer by presenting evidence to the contrary, it is essential to have this in mind and restrain from doing any activities that USCIS officers may find suspicious. If you are a single-intent visa holder and got married or filed a green card application within 90 days upon entering the U.S., the USCIS officer who reviews your case will presume that you did not enter the U.S. for reasons you initially claimed. The U.S. government takes these perceived deceptions very seriously: your green card application will probably be denied.
Moreover, it also can affect your existing visa, which could be revoked.
Why You Should Hire Richard Herman Today
When you need help with filing an adjustment status application, preparing different kind of immigration forms, or dealing with different complex scenarios on your immigration journey, you need the legal services of an experienced immigration attorney.
Any mistake and breach of immigration law can affect your petition on a case-by-case basis and prevent you from getting a green card.
Herman Legal Group has over 26 years of experience with the most experienced immigration attorneys who offer quality immigration services.
You can schedule a consultation with us via Skype, Zoom, WhatsApp, or Facetime, or you can decide to visit our worksite location to discuss your case. You can contact us via +1-216-696-6170. If you prefer to speak with Richard Herman, you can alsobook your consultation online.
