Adjustment of Status: What is the New 90 Day Rule?

What Is the New 90-Day Rule Adjustment of Status?

There are certain activities that conditional green card holders cannot perform for a certain amount of time after entering the United States, as these activities may prevent them from becoming permanent residents in the country. Individuals who have no intention of staying in the U.S. do not have to worry, but individuals who apply to adjust their status when visiting on a temporary visa may face consequences from the United States Citizen and Immigration Services (USCIS) and the U.S Department of State. Nonimmigrant visa holders applying for adjustment of status after 90 days will be subject to the new 90-day rule.

What is the 90-Day Rule Immigration Law?

Many individuals who visit the U.S. come on nonimmigrant temporary visas. Nonimmigrant temporary visas allow people to enter the country for a specific reason—and only that specific reason—with no intention of becoming a lawful permanent resident (LPR) of the U.S. The 90-day immigration rule is used to check for violations of nonimmigrant status within the first 90 days from the time of entry. This is a revision to the old 30/60-day rule which served a similar purpose.

For example, an individual enters the U.S. with a nonimmigrant tourist visa but gets married within the first 90 days. When this person applies for an adjustment of status to become a permanent resident, USCIS will perform an investigation to check if the status change was genuine. If USCIS discovers that the change was fraudulent—meaning the individual is unlawfully trying to become a permanent resident with a nonimmigrant visa—the applicant will face legal consequences.

USCIS previously only considered a marriage under a nonimmigrant visa to be fraudulent if it happened within 30 days of entry. This rule was later changed to 60 days. The new 90-day rule increases requirements and makes it increasingly difficult for nonimmigrant visa holders to unlawfully become residents.

Who is Affected by the 90-Day Rule?

The goal of the 90-day rule is to reduce the exploitation of temporary visas and conditional green cards. This rule directly affects individuals who have a nonimmigrant visa and then apply for a change or adjustment of status.

USCIS looks for a variety of activities to indicate that an individual misrepresented intent. Here are some examples of what they look for within that 90-day window:

Becoming employed unlawfully or being hired to work a job without the proper documents
Enrolling in an educational program without necessary authorization before changing status
Being a nonimmigrant visa holder that marries a U.S. citizen or green card holder
Undertaking any other activity/activities that require an adjustment of status without the proper adjustment of status

If a non-immigrant commits any of these acts within the 90-day period, they will be required to prove that it was not part of their initial intent.

How to Count for the 90-Day Rule

USCIS counts by adding 90 days to your most recent I-94 travel record. If you are worried that this rule might affect your adjustment of status application, wait 100 days before doing anything that might be considered fraudulent. This count includes all holidays, workdays, and weekends.

Consequences of Breaking the Immigration 90-Day Rule

The 90-day rule was created by the Department of State to serve as a reference when deciding the legitimacy of status adjustment cases. However, USCIS is responsible for conducting investigations.

The burden of proving genuine intent falls on the applicant. USCIS officials presume misrepresentation of intent, which means they will assume that your nonimmigrant visa was not indicative of your full intentions. If this occurs and USCIS concludes that a violation did take place, your existing visa will be taken away and your petition for status change will be declined. Providing evidence that your change of status was unplanned and of an authentic nature can help you beat the 90-day rule.

How to Prove Nonimmigrant Intent in a Visa Interview

Upon applying for an LPR adjustment of status, you will be required to meet with USCIS officials. During this meeting, they will ask you a series of questions that include a section on nonimmigrant intent. To establish that you had no intention of adjusting status when you first entered the country, you will need to demonstrate the following:

You have a residence in another country.
You have no intentions of abandoning your residence or belongings in the near future.
You have plans to leave the U.S. when your visa expires.

The consular office in charge of your case will ask you about investments, properties, bank accounts, and other financial ties to your country of origin. They will also ask about your employment situation and history in your home country. If the consular officer has good reason to believe that your intention was not to become a permanent resident of the U.S. upon arriving, they will likely grant your visa application.

90-Day Rule: Immediate Relatives

Typically, immediate relatives of U.S. citizens are exempt from the 90-day misrepresentation rule. However, there is still potential to be investigated for anyone who applies for a status change or adjustment within the first 90 days of a visit to the U.S.

Dual Intent Visas

When it comes to nonimmigrant visa holders lawfully entering the U.S., there are multiple visa types that allow individuals to adjust to permanent residence after a fixed amount of time. These visas are called dual intent visas and establish from the beginning the holder’s conditional ability to become a citizen after entering the U.S. as a temporary non-immigrant.

Holders of the H-1B visa that are sourced from other countries to work for U.S. companies are allowed to apply for permanent residence after they complete their tenure. Holders of the K-1 fiancé visa can apply for permanent residency after marrying a U.S. citizen. Other visa types that can adjust are E, H, K, L, and O.

30/60 Day Rule: Immigration Law

Prior to the 90-day rule, USCIS only looked at a 60-day window. Before that, they looked at a 30-day window. As time has passed, USCIS has become more thorough in its investigations of potential misrepresentation. The 30/60/90 progression has increased the capacity for USCIS to deny your application and revoke your visa.

Contact Scott D. Pollock & Associates, P.C.

The 90-day rule for adjustment of status is sometimes vague and documents can be difficult to fill out for individuals whose first language is not English. The experienced immigration lawyers at Scott D. Pollock & Associates, P.C. have an in-depth understanding of the visa system and are prepared to help you navigate its complex regulations.

Consulting an immigration attorney is the first step to successfully preventing any issues with the 90-day rule or proving that your initial temporary visa intent was not misrepresented. The longer you wait, the more you risk. Call our firm at 312.444.1940 or e-mail consult@lawfirm1.com to set up a consultation with our lawyers.