It’s all too common for temporary visa holders visiting the US to reschedule. So for instance, you might fall in love with a U.S. citizen or permanent resident and want to stay longer. But wait before you run to submit your green card application, there’s a simple rule you need to know.
The 90-day rule applies to people who want to receive a green card (reform of status) after coming to the US under a temporary visa (B, F, or J). It was first announced in September 2017 and applies to any person who applies for a green card within 90 days of arriving in the U.S.
What Is the 90-Day Rule?
If you file your Adjustment of Status application (Form I-485) 90 days after arriving in the US on a short-term visa, the US government will believe that you willfully falsely state your intentions when you entered the country. This can be a sign that they may suspect you never planned to return home before your temporary visa ran out. Rather, they will believe you arrived in the U.S. secretly hoping to stay for good. It could cause you to lose your green card application or even lose your temporary visa.
Is It Possible to Still Receive a Green Card If You Apply In 90 Days?
Yes, you can still get a green card within the first 90 days, but it’s going to be harder. To bypass the “willful misrepresentation” presumption, you’d have to establish persuasively that you came to the United States to follow the terms of your visa. Let’s say you came to see your wife for a few months, then she fell ill, and you stayed longer to treat her. If that is the case, you would have to state this at your green card interview and you may have to show medical documents or other evidence.
If you don’t have a strong reason, your application might be rejected, and you may run into more immigration problems.
How Can You Defeat the 90-Day Rule Challenge?
It is best not to be impacted by the 90-day requirement before you seek a green card if you haven’t arrived in the United States as a temporary visitor within 90 days. But waiting still won’t guarantee a nod. The U.S. Citizenship and Immigration Services (USCIS) will still have to check your case to see if you were upfront with what you were bringing when you entered the country.
If you are thinking about applying for a green card once you’ve been in the U.S. on a short-term visa, you should know about the 90-day rule. Sending in your application for adjustment of status too early can send immigration officials shivers. To prevent problems, generally, you want to wait 90 days after applying. But if you have an exceptional reason to remain in the US longer than that, like a health emergency or a life change, you could still apply — though you’ll have to come prepared to show good proof.
You can always ask an immigration attorney if you’re not sure when or how to apply so that they can walk you through it and help you apply.
Implications for Adjustment of Status
- Presumption of Misrepresentation: If a nonimmigrant applies for AOS within 90 days, USCIS may presume that they misrepresented their intent when entering the U.S. This can lead to denial of the AOS application and possible revocation of their current visa.
- Burden of Proof: The applicant must demonstrate that their decision to adjust status was genuine and not pre-planned at the time of entry. This involves providing evidence that circumstances changed unexpectedly after their arrival in the U.S.
- Immediate Relatives Exception: There is some legal precedent suggesting that immediate relatives of U.S. citizens may be exempt from this presumption under certain conditions, but caution is advised as applying for AOS within 90 days still carries risks.
Are there any exceptions to the 90-day rule for adjustment of status
The 90-Day Rule does have exceptions, particularly for certain categories of applicants seeking Adjustment of Status (AOS) in the United States. Here are the key exceptions:
Immediate Relatives of U.S. Citizens:
Individuals who are immediate relatives (spouses, parents, or children over 21) of U.S. citizens may be exempt from the presumption of misrepresentation if they apply for AOS within the first 90 days of their entry into the U.S. This exemption is supported by legal precedents in cases such as Matter of Battista and Matter of Cavazos .
Unexpected Changes in Circumstances:
If an applicant can demonstrate that their circumstances changed unexpectedly after entering the U.S., they may argue against the presumption of misrepresentation. For example, if a personal or family situation arises that necessitates applying for AOS, this could potentially mitigate concerns regarding intent.
Dual Intent Visa Holders:
Holders of dual-intent visas (like H-1B or L-1) are not subject to the 90-day rule since these visas allow for the possibility of applying for permanent residency without implying misrepresentation of intent.
Marrying a U.S. Citizen:
While marrying a U.S. citizen within 90 days can raise flags, if the marriage is genuine and properly documented, it may still allow for AOS despite the timing.
Caution Advised
Despite these exceptions, it is crucial for applicants to proceed with caution when applying for AOS within the 90-day period. Consulting with an immigration attorney is advisable to navigate potential risks and ensure compliance with immigration laws.
How does the 90-day rule differ from the 30/60-day rule
The 90 day Rule and the 30/60-day rule are both policies used by the U.S. Citizenship and Immigration Services (USCIS) to evaluate the intentions of nonimmigrant visa holders regarding their status in the United States. However, they differ significantly in their scope and implications.
30/60-Day Rule
- Duration: This rule was in effect prior to September 2017.
- Application:
- 30 Days: If a nonimmigrant files for adjustment of status within 30 days of entering the U.S., USCIS presumes they misrepresented their intent, leading to a denial.
- 30 to 60 Days: USCIS views applications filed between 30 and 60 days with suspicion, but does not automatically disqualify them.
- More than 60 Days: USCIS generally does not view applications filed after 60 days as problematic and does not apply the presumption of misrepresentation.
90-Day Rule
- Duration: Implemented on September 16, 2017, replacing the previous rules.
- Application: The rule applies uniformly to all applicants, presuming misrepresentation if any of the following actions occur within 90 days of entry:
- Engaging in unauthorized employment.
- Enrolling in unauthorized academic courses.
- Marrying a U.S. citizen or lawful permanent resident and taking up residence while in a nonimmigrant status that prohibits immigrant intent.
- Any other activities requiring a change or adjustment of status.
Key Differences
| Feature | 30/60-Day Rule | 90-Day Rule |
|---|---|---|
| Time Frame | 30 days for presumption; 30-60 days for suspicion; >60 days generally safe | All actions within a strict 90-day window are scrutinized |
| Presumption of Intent | Presumed misrepresentation only within the first 30 days | Presumed misrepresentation for any actions within the first 90 days |
| Flexibility | More lenient after the first 60 days | Stricter overall; less leeway for applicants |
| Implications for Actions | Actions taken after 60 days are usually acceptable | Any action inconsistent with visa intent within 90 days raises red flags |
The transition from the 30/60-day rule to the 90-day rule has made it more challenging for nonimmigrant visa holders to adjust their status without facing scrutiny from immigration authorities. The broader scope of the 90-day rule means that individuals must be particularly cautious about their activities shortly after entering the U.S.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for a K-1 Visa or an EB-3 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.
