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90 Day Rule and Adjustment of Status

90 Day Rule and Adjustment of Status

PUBLISHED ON: December 17

In September 2017, a serious change was made to the Foreign Affairs Manual by the US Department of State. A new 90-day rule came into existence, replacing the 30/60-day rule. This new rule could have a profound effect on individuals interested in an adjustment of status.

The process you need to complete when applying for the lawful permanent resident status is called adjustment of status. The process is colloquially called applying for a Green Card, which will enable you to remain in the US without returning to your home country and applying for a visa again. A person’s eligibility for adjustment of status is determined by several things. Comprehensive information about the requirements and the procedure is available on the US Citizenship and Immigration Services website.

The category that an immigrant is applying under will determine the adjustment of status eligibility requirements. The specific conditions can be found by exploring the Green Card eligibility categories. Some of the common possibilities include Green Card application through family, via employment, as a refugee, as a victim of abuse and as a special immigrant.

What Is the 90-Day Rule?

According to 9 FAM 302.9, an alien who engages in conduct inconsistent with their nonimmigrant status within a 90-day period of entering the US may become inadmissible for the Green Card or even permanently barred from entering the US.

What does all this terminology mean? People who enter the US for the sole purpose of applying for the permanent residence could suffer the consequences of the 90-day rule.

Certain actions on behalf of an immigrant could trigger the 90-day rule. The most common ones include the following:

  • Getting employed unlawfully
  • Enrolling in an educational program without a change of status or the proper authorization
  • Being a non-immigrant in a status that prohibits marriage to a US citizen
  • Undertaking any other activity that will legally necessitate a change of status

The 90-day rule will be applied to determine whether a non-immigrant has violated the terms of their visa.

When Can You Lawfully Complete the Adjustment of Status Process?

Usually, visa applicants have to prove their non-immigrant intent during the interview. The goal can be accomplished by demonstrating the following:

  • Have a residence in another country
  • Have no immediate intentions of abandoning the residence
  • Plan to leave the US upon the termination of your visa

Adjustment of status, however, can take place for certain visa holders. If an employer decides to sponsor the individual or if they fall in love and get married to a US citizen, the Green Card application process may be initiated.

USCIS will face the task of determining whether there was preconceived intent (for example, getting married for the sole purpose of staying in the US). Generally, getting a visa and using it to engage in activities that it wasn’t intended for will be considered visa fraud. If you enter the country on a B-2 visa for the sole purpose of getting married and staying in the US, you will be committing a visa violation.

This is where the 90-day rule applies. It’s unlikely for a person to fall in genuine love and get married within 90 days of entering the country. A violation of the visa status within this relatively short period of time is going to have profoundly negative consequences.

After the end of the 90-day period, there will be no presumption of misrepresentation. This, however, does not mean you will be entirely off the hook. If there is a reasonable belief that the individual misrepresented the purpose of the trip, Green Card denial will occur once again.

Misrepresentation Exemptions

Certain people are exempt from the terms and conditions that apply to others via the 90-day rule.

Immediate relatives of US citizens are typically exempt from the misrepresentation rule. Still, the first 90 days of a visit to the US are risky for a status adjustment. Anyone who enters the US with a non-immigrant visa or on a visa waiver program should talk to an experienced immigration attorney about the adjustment of their status.

The visa waiver program enables residents of certain countries to enter the US without a visa interview. The program’s terms and conditions are highlighted by the US Department of State – Bureau of Consular Affairs. Even when the visa waiver program applies, the terms and conditions for adjustment of status will still have to be met.

We can help you complete the adjustment of status process successfully after the first 90 days from the US entry have passed. As experienced Chicago immigration lawyer professionals, we suggest waiting for the rule to be fulfilled before moving forward. If you wait solely 30 or 60 days, chances are that you’ll have to deal with issues linked to potential misrepresentation.


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