Navigating the 90-Day Rule: A Guide to Adjustment of Status

The “90-day rule” in U.S. immigration law is not an official term or statute, but it refers to a guideline used by U.S. immigration officials to determine whether a foreign national who entered the United States on a temporary visa (e.g., a tourist visa) or through the Visa Waiver Program (VWP) misrepresented their intentions when applying for the visa or entering the country.

The basic idea behind the 90-day rule is that if a non-immigrant visa holder or VWP traveler engages in certain activities within 90 days of their entry, it may be presumed that they had preconceived intent to engage in those activities when they applied for their visa or entered the U.S. These activities include:

  • Getting married to a U.S. citizen.
  • Applying for and obtaining a change of status to a different non-immigrant category.
  • Adjusting status to permanent residence (green card holder).
  • Taking up unauthorized employment or working without the appropriate work visa.

If someone engages in one of these activities within 90 days of entry, it may lead immigration officials to believe that the person misrepresented their true intentions when they applied for their visa, which could result in visa denials, visa revocations, or removal from the United States.

It’s important to note that the 90-day rule is not a strict, automatic rule, and various factors can influence how it is applied in individual cases. It is a discretionary guideline, and immigration officers will consider the specific circumstances of each case. If you are planning to travel to the U.S. on a non-immigrant visa, it’s important to be honest and transparent about your intentions during the visa application process and while entering the country, as misrepresentations can have serious consequences for your immigration status.

Who is subject to the 90-day rule?

The 90-day rule primarily applies to individuals who enter the United States on non-immigrant visas, such as B-1 (business visitors), B-2 (tourists), F-1 (students), and J-1 (exchange visitors), or those who enter the country through the Visa Waiver Program (VWP). It is used to assess whether the individual had preconceived intent to engage in certain activities that are not allowed under these non-immigrant visa categories.

Here are some examples of who may be subject to the 90-day rule:

  • Tourists (B-2 visa holders): If a tourist enters the United States on a B-2 visa and within 90 days of their entry marries a U.S. citizen or applies for a change of status to another non-immigrant category, they may be subject to the 90-day rule.
  • Students (F-1 visa holders): If an international student on an F-1 visa enters the U.S. and shortly thereafter marries a U.S. citizen or applies for an adjustment of status to become a permanent resident, the 90-day rule may be considered.
  • Exchange visitors (J-1 visa holders): Individuals on J-1 visas who participate in exchange programs may be subject to the 90-day rule if they engage in activities like marrying a U.S. citizen or applying for a change of status to another non-immigrant category.
  • Visa Waiver Program (VWP) travelers: Travelers who enter the U.S. through the VWP and engage in activities prohibited under this program within 90 days of their entry may also be subject to the 90-day rule.

It’s important to understand that the application of the 90-day rule is discretionary, and immigration officials will consider the specific facts and circumstances of each case when assessing whether the individual misrepresented their intentions at the time of visa application or entry.

To avoid potential issues, it’s crucial to be truthful about your intentions when applying for a non-immigrant visa and during the entry process. If your plans change after entry (for example, if you decide to marry a U.S. citizen), it’s recommended to consult with an immigration attorney to explore your options and ensure compliance with U.S. immigration laws.

How to comply with the 90-day rule when applying for permanent residence?

Complying with the 90-day rule when applying for permanent residence (a green card) in the United States is essential to avoid potential issues related to misrepresentation. To do so, you should follow these guidelines:

  • Be truthful in your visa application: When you apply for a non-immigrant visa to enter the U.S., it’s crucial to accurately represent your intentions. If you intend to eventually seek permanent residence, you should not misrepresent your intentions or state that you plan to engage in activities that are not allowed under your current visa category.
  • Wait for the appropriate time: If you enter the U.S. on a non-immigrant visa and have a change of heart regarding your intentions, it’s important to wait for an appropriate amount of time before pursuing permanent residence. The 90-day rule suggests that engaging in certain activities (like marrying a U.S. citizen) within the first 90 days of entry may be seen as preconceived intent to adjust your status to permanent residence. Waiting beyond this period can help demonstrate a change of circumstances or intentions.
  • Seek proper legal advice: If you change your intentions after your entry and plan to apply for a green card, it’s advisable to consult with an experienced immigration attorney. They can assess your specific situation, advise you on the best course of action, and help you prepare a strong case that shows a genuine change of circumstances or intentions.
  • File the appropriate petitions and applications: When you are ready to apply for permanent residence, you will typically need to submit an immigrant petition and adjust your status if you are already in the U.S. The specific forms and processes can vary based on your family or employment-based immigration category. Ensure that you complete all the required documentation accurately and honestly.
  • Provide evidence of a bona fide relationship: When applying for a green card through marriage to a U.S. citizen, you will need to provide evidence of a bona fide relationship to demonstrate that your marriage is genuine and not solely for immigration purposes. This evidence can include joint financial records, shared living arrangements, photos, and affidavits from friends and family.
  • Attend interviews and cooperate with USCIS: Be prepared for interviews with U.S. Citizenship and Immigration Services (USCIS) or other relevant agencies as part of your green card application process. Be honest and forthright during these interviews.
  • Follow the guidance of your immigration attorney: Your immigration attorney will guide you through the application process, help you prepare your case, and advise you on the specific steps to take based on your unique circumstances.

Complying with the 90-day rule is crucial to avoid issues with your green card application. Being honest, seeking legal guidance, and following the correct procedures are key elements in successfully transitioning from a non-immigrant visa to permanent residence in the United States.

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