How the 90 day rule (and the 30/60 day rule waiver) may affect your permanent residence status adjustment
In September 2017, the US State Department made a major change to its Foreign Affairs Manual (FAM). This has had a dramatic impact on the way immigration officials assess the inadmissibility in certain cases. The change essentially eliminated the 30/60 day rule and introduced a stricter standard now known as the “90 day rule”. If you are applying for a green card within the United States, you should understand the rule and how USCIS can use it to determine the ineligibility.
In fact, every nonimmigrant visa holder should know the rule as it can affect how immigration officials perceive attempts to change status. The 90-day rule assumes that a nonimmigrant visa holder willfully misrepresented at the time of approval or application for a nonimmigrant visa if that nonimmigrant enters the United States and commits behavior that does not coincide within 90 days is compatible with its nonimmigrant status. In other words, if the visitor does anything within the first 90 days that is incompatible with the purpose of the visa, the State Department will consider fraud.
In 2018, USCIS updated its Policy Manual to incorporate the State Department’s 90-day rule as a tool for detecting potential misrepresentations in a wide variety of cases, including adjusting status. While the manual states that the rule is not binding on USCIS, officials should use it to assess cases.
Who is affected by the 90-day rule?
The introduction of the 90-day rule could have potentially significant consequences for individuals who apply for a status adjustment or change of status after entering the United States on a nonimmigrant visa or temporarily.
The FAM suggests that the following measures are sufficient to trigger the application of the 90 day rule:
- Engage in unauthorized employment;
- Enrollment in school without authorization and / or change of status; or
- Marriage to a US citizen or permanent resident and residence in the United States (as a status unauthorized for that purpose); or
- Performing other activities that would require a status change or adjustment without changing or adjusting the status.
This article focuses on how the 90 day rule can affect status applicant customization. For the purpose of adjusting the status application submitted shortly after a person enters the United States, immigration officers can use the 90-day rule to determine if the applicant has violated the requirements of a nonimmigrant visa.
Please refer to your I-94 arrival / departure log for information on determining your entry date. The 90 day rule applies to your last entry into the United States. If you have multiple I-94 records or multiple entries, always refer to the newest entry.
Intent Explainer for nonimmigrants
When applying for most U.S. non-immigrant (temporary) visas, applicants must provide evidence of their plans to return home after completing the stated purpose of travel. For example, temporary visa categories (such as B, F, J, M, Q, TN, and visitors to the visa waiver program) are assigned short-term activities. Examples of short term activities are tourism, business, education, and some employment. Non-immigration intent means that the visa holder has no plans (and is not authorized) to stay in the United States permanently. In fact, US immigration law presumes the intent of immigrants. Therefore, the burden of proof rests on nonimmigrant visa applicants to prove that they have sufficient connections with their home country to force them to leave the US after the temporary stay.
Evidence of non-immigrant intent in your Visa interview
Because of this, an immigration officer likely asked you certain questions (if you had one) in your visa interview. The consular officer may have asked about your financial ties (e.g. property, investments, bank accounts) and employment relationships (e.g. employer letter) with your home country. In order to prove your intent as a nonimmigrant, you had to discover that you:
- have a residence abroad;
- have no immediate intention to leave this residence; and
- intend to leave the US after the visa expires.
The consular officer wanted to make sure you had no intention to immigrate before issuing the nonimmigrant visa. If you entered the United States through the Visa Waiver Program (without an interview), the same rules apply.
RECOMMENDED: Preconceived intention declared
90 day rule
Under the 90-day rule, fraud occurs when a person violates their nonimmigrant status or engages in behavior incompatible with that status within 90 days of entry. If a nonimmigrant attempts to adjust status during this 90 day period, the applicant should expect re-examination of the application. As a result, many lawyers are now advising their clients to avoid marriage and status adjustments within at least three months of entry.
That doesn’t mean that there is always no problem after 90 days. After 90 days there is no suspicion of misrepresentation. However, if there is a reasonable belief that the nonimmigrant misrepresented the purpose of his or her trip at the time of the visa application or admission application, an immigration officer could use this against you. To do this, there must be circumstances and / or the immigration officer must have evidence that fraud is more likely than not.
Exception for immediate relatives of US citizens
While there is a precedent for immediate relatives of US citizens to be exempt from misrepresentation under the previous 30/60 day rule, the first 90 days should be viewed as risky for status adjustment. Based on two cases (the Battista affair and the Cavazos affair) Immediate relatives of U.S. citizens seeking a status adjustment are exempt from the misrepresentation.
Even so, this is still a risky area. If you entered the US on a nonimmigrant visa (or visa waiver program or border crossing card) and want to adjust immediate relative status (or even get married) within 90 days of entry, speak to an attorney first for immigration issues to make sure there are no other factors influencing you.
90 day rule examples for I-485 applicants
Example: TN Visa Holder
Jonathan is a 24 year old Canadian citizen entering the United States on a TN work visa. Jonathan was simultaneously pursuing a green card through an employer. The employer has completed the PERM process and has an approved I-140 petition. The visa number also became available shortly before Jonathan’s last entry into the United States on the TN visa. So shortly after arriving in the US, Jonathan files an application for status adjustment. With Jonathan having instant access to a green card, the USCIS officer can assert preconceived intent to enter the US on a TN visa so he can adjust status to permanent residence. Jonathan could have avoided this problem by returning to Canada and applying for a green card through consular processing.
Example: Family preference participating in the Visa Waiver program
Julian is a 5 year old French citizen whose mother recently received a green card. Julian’s mother transports him to the USA as part of the Visa Waiver Program. Although the VWP is intended for temporary visits, Julian should be taken to the United States to file Form I-485 and adjust status. As a permanent resident child, Julian falls into the family preference category. If Julian adjusts status within the first 90 days of entry, USCIS will likely assume that there was some preconceived intent despite being a child. If Julian adjusts status after 90 days, he must file Form I-485 while illegally present. Visiting the Visa Waiver Program is valid for 90 days. A family preference applicant will be unable to file Form I-485 if illegally present and USCIS will likely deny the application. (USCIS can also place the child in deportation proceedings.)
Example: Immediate relative entry with a B-2 visa
Marta is a 60-year-old Costa Rican national who applied for and obtained a B-2 visa to come to the United States to visit her son and her son’s family. When Marta first entered the United States, she had only planned to stay for a short time. Martha decides that she really enjoys being reunited with the family in the United States. Therefore, she submits an application for status adjustment just six weeks after entering the US. Due to the 90-day rule, USCIS could potentially deny Marta’s request for status adjustment due to preconceived intentions. With no evidence that she changed her mind, the USCIS officer would likely assume that Marta entered the US on the B-2 visa with the preconceived intention of permanently emigrating. However, since Marta is the immediate relative of a US citizen, she has significant family ties within the US. Therefore, Martha would be exempt from the 90-day rule, and USCIS would likely not deny her adjustment of the status request based on preconceived intent.
Double purpose visas
A dual purpose visa allows a foreigner to enter the United States as a nonimmigrant, but reserves the option to adjust status to permanent residence at a later date. Several visas inherently include the option of the visitor to be permanent resident of the United States. For example, a foreign fiancé uses a K-1 fiancé visa to enter the United States and marry a US citizen. Most will stay in the US and adjust their status to become permanent residents. Likewise, employers routinely sponsor a foreign worker for an H-1B visa and later the non-immigrant for a green card. Most E, H, K, L, O, and P visas are dual purpose visas.
RECOMMENDED: Dual purpose visas and the concept of non-immigrant intent explained
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Note to reader: This post was originally published on January 9, 2018 and has been changed with improvements.
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