Your Path to a Green Card: The 90-Day Rule and Adjustment of Status Roadmap

What is the 90-Day Rule in U.S. immigration?

The 90-day rule in U.S. immigration refers to a guideline used by U.S. immigration officials to determine whether a foreign national who enters the United States with a nonimmigrant visa has violated the terms of their visa status. This rule is not a formal law but rather a common practice used by immigration authorities to assess the intentions of individuals seeking entry to the U.S. on nonimmigrant visas, such as tourist visas (B-1/B-2 visas), student visas (F-1 visas), or work visas (H-1B visas).

Under the 90-day rule, if a foreign national enters the United States with a nonimmigrant visa and engages in activities that are inconsistent with the purpose of their visa within 90 days of entry, it may be presumed that they misrepresented their intentions when applying for the visa. This could have serious consequences, such as visa revocation, denial of entry, or difficulties in obtaining future visas.

For example, if someone enters the U.S. on a tourist visa but quickly gets married to a U.S. citizen or begins working without the proper work authorization within the first 90 days of their arrival, it may raise suspicions that they had a different intent when applying for their visa.

It’s important to note that the 90-day rule is a guideline, and each case is evaluated individually. The burden of proof rests with the individual to demonstrate that they did not misrepresent their intentions when applying for the visa. Therefore, it’s crucial for visa holders to be truthful in their visa applications and adhere to the specific terms and conditions of their visa category while in the United States.

Immigration laws and policies can change over time, so it’s advisable to consult with an immigration attorney or the U.S. Citizenship and Immigration Services (USCIS) for the most up-to-date information and guidance on visa-related matters.

How does the 90-Day Rule impact the Adjustment of Status?

The 90-day rule can have implications for individuals who are in the United States on a nonimmigrant visa and are considering applying for Adjustment of Status (AOS) to obtain lawful permanent resident status (a green card). When an individual applies for AOS, they are essentially seeking to change their immigration status from a nonimmigrant (temporary) status to an immigrant (permanent) status.

The 90-day rule can affect the AOS process in the following ways:

• Misrepresentation Concerns: If a foreign national applies for AOS within 90 days of their entry into the United States and immigration authorities have reason to believe that the individual misrepresented their intentions when obtaining the nonimmigrant visa (e.g., if they intended to get married or work in the U.S. but stated otherwise during their visa application), this could lead to concerns of visa fraud or misrepresentation.
• Presumption of Preconceived Intent: Under the 90-day rule, applying for AOS shortly after entry may lead immigration officials to presume that the individual had a preconceived intent to immigrate when they entered the U.S. with a nonimmigrant visa. This presumption can make it more challenging to convince immigration authorities that their original intent was in line with the terms of their nonimmigrant visa.
• Increased Scrutiny: Applicants for AOS who are subject to the 90-day rule may face heightened scrutiny during the application process. Immigration officers may closely examine their actions and intentions since their entry into the United States to determine if there was any misrepresentation or violation of visa terms.

It’s important to note that the 90-day rule is not an automatic bar to adjusting status. It is a guideline used to assess the applicant’s intentions and eligibility. If an applicant can demonstrate that they did not have a preconceived intent to immigrate when they entered the U.S. on a nonimmigrant visa and that their circumstances changed after their entry, they may still be eligible for AOS.

To navigate potential issues related to the 90-day rule and the Adjustment of Status process, individuals should consult with an experienced immigration attorney. An attorney can provide guidance, help prepare a strong application, and address any concerns that may arise during the process. Each case is unique, and an attorney can provide tailored advice based on the specific circumstances of the applicant.