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The 90-Day Rule and Adjusting Status to Green Card Holder

Replacement of 30/60-day Rule:

In September 2017, the State Department of U.S. made a substantial change in ‘Foreign Affairs Manual (FAM), replacing the 30/60-day rule with ‘the 90-day rule’.

It could have a profound consequence for individuals interested in ‘adjustment of status after entering the U.S. on a non-immigrant visa or temporary basis.

Meaning of 90-Day rule:

The 90-days rule is a USCIS guideline that states that alien/non-immigrant visa holders engage in conduct inconsistent with their non-immigrant status, e.g., marry U.S. citizens or lawful permanent residents.

If they apply for adjustment of status within 90 days of entering the U.S. are automatically presumed to have misrepresented their original non-immigrant intentions.

This type of alien may become inadmissible for the Green Card or even permanently barred from entering the U.S.

The 90-days rule applies with the presumption that non-immigrant visa holders willfully misled the state department at the time of admission or application for a non-immigrant visa.

It is a very simple rule used as a tool to detect potential applicants’ misrepresentation and non-immigrational intent for the adjustment of statuses.

Before September 2017, USCIS used 30/60-day rule served the same purpose, replaced with a new rule that applies to all non-immigrant visa holders who entered the U.S. for temporary stay or with the ‘single intent’ except those who came with ‘dual intent’ such as H, L or O visa holders.

Difference between Single and Dual Intention Visas:

If you are coming to the U.S. and willing to change/adjust your temporary residency status to permanent, you must be familiar with the single and dual intent visas explained as below;

  • Single Intent Visa: This is the common type of visa offered by the U.S. government awarded to those immigrants who are not intended to stay in the United States permanently. It includes tourism and education in which immigrants must return to their home country before the deadline stamped on the immigrants’ passports.
  • Dual Intent Visa: This includes visas like H-1B or L-1  given to immigrants to allow them to travel to the United States while at the same time planning to relocate permanently.

Application of 90-day Rule:

The 90-day rule is applied to all the individuals who entered the U.S. with a single intention or temporary stay. It doesn’t affect the individual who traveled to the U.S. with double intentions to stay permanently.

Who does the 90-day rule apply to?

If the ‘single intent visa holder’ involved in the following actions are sufficient to trigger the application of the 90-day rule. In that case, that could be judged as the misrepresentation of their original intentions at the time of entering the United States.

  • Seeking unauthorized employment.
  • Trying to get married to a green card holder or U.S. Citizen.
  • Enrolling in an unauthorized academic program (without having a proper student visa).
  • Filing an ‘adjustment of status green card application (Form I-485).

A rare exception to the 90-day rule:

There are some rare cases in which non-immigrant are exempted from the 90-day rule by convincing USCIS officials that their intention to apply for a green card was genuine.

This approach has a meager success rate, but it can happen in the following cases;

  • Immediate relatives of U.S. citizens are exempted from misrepresentation for the first 30/60 days based on two cases; the Matter of Battistaand the Matter of Cavazos.
  • A person who falls in genuine love and get married within 90 days of entering the country.

How to count 90-day?

To keep the strong check on ‘90-days count’, Form I-94 (Arrival/Departure Record) is the easiest way. For this, take I-94 and add at least 90 days to it. To be on the safer side, you are further advised to add 100 to accommodate the working days and holidays that are also counted in the 90-day rule.

What happens if you break a 90-day rule?

This rule serves as a guideline for USCIS officers to assess visa applications. This rule is applied to non-immigrants entering the U.S. temporarily.

If someone misrepresented their original intent, violated the rule, their application for permanent resident status may be declined, and their existing visa could also be revoked. The U.S. government takes severe actions against the case of perceived deception and fraud.

However, if an applicant can prove the purity and genuine intentions to the USCIS officer, they may still have a chance to get a green card.

How can single intent visa holders prove eligibility for ‘Adjustment of Status?

Visa applicants need to prove their non-immigrant intent during the interview to the USCIS officer by demonstrating the following;

  • Residence in another country
  • No immediate intentions of leaving the residence
  • leave the U.S. upon the termination of visa

The applicant can get the ‘Adjustment of status’ in the following conditions by convincing the USCIS officer;

  • If an employer sponsors the individual.
  • If they fall in love and get married to a U.S. citizen.

Frequently Asked Questions (FAQs)

What happens if a single intent visa holder decides to marry a U.S. citizen or green card holder?

Ans: The U.S. government allows non-immigrant visa holders to change their minds after entering the U.S. geographical boundary.

However, they must prove the purity of initial intentions to enter the United States. They have to convince the USCIS officer that they didn’t come with the sole purpose of permanent stay in the U.S. ‘dream land’. They didn’t mislead the U.S. Government about misrepresenting intentions and purpose.

How can I prove non-immigrant intent during a Visa Interview?

Ans: You must convince the USCIS officer about your intention of temporary stay in the U.S. For this, you can use some relevant documents to prove your strong connection with your home country. These documents may include;

  • Proof of your connection to your home country (title deeds, business licenses, etc.)
  • Evidence of family commitments in your home country.
  • Proof of employment in your home country.

Will the 90-Day rule still count if I leave the country and return at a later date?

Ans: No, the 90-day count starts from the day of your entrance into the U.S. and ends on the 90th day. If you leave the country and return, the count will start from the most recent arrival date.

Am I guaranteed a Green Card if I do not violate the 90-Day rule?

Ans: Definitely not; green card application has many stages and requirements that must be fulfilled. The USCIS officer examines all factors; the 90-day rule is just one of them.

You can be disqualified if you are involved in any fraudulent activity or crime. Moreover, if you couldn’t qualify for the test and interview (when and where applied) and also in case of any discrepancy between your claim in the application and supporting documents, and many more.

So, you have to carefully read the available path, process, and fulfill all the guidelines to get a green card. Furthermore, you can take the help of a professional lawyer to make the process smooth, easier, and error-free.

What happens if USCIS denies my ‘Adjustment of Status’ application?

Ans: If USCIS denies your application, you’ll no longer be in lawful immigration status. You will have to stop your activities and make plans to leave the U.S. as soon as possible.