Understanding US Immigration 90-Day Rule – Visa Implications

Marriage to a United States citizen or green card holder opens the door to a marriage-based green card. However, applicants who act hastily may violate a rule of the U.S. Citizenship and Immigration Services (USCIS) that is intended to prevent individuals from utilizing transitory visas for unintended purposes.

The “90-day rule” is a USCIS guideline that is employed to ascertain whether green card petitioners who are applying from within the United States misled government officers when they were granted visas or admitted to the country. It is a straightforward rule; however, applicants who violate it may have their green card applications denied and their current visas revoked. In the future, they may also encounter difficulty in obtaining U.S. visas.

Therefore, it is imperative to comprehend the manner in which the 90-day rule is implemented by USCIS. Individuals who disregard the 90-day rule when they marry or register for green cards may face severe consequences.

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What Is the 90-Day Rule?

Dual intent is a term that refers to certain U.S. visas, such as the H-1B or L-1 work visas. This term refers to the fact that the holder is permitted to use the visa while simultaneously intending to permanently relocate to the United States. Individuals who possess dual intent visas are not required to be concerned with the 90-day rule.

However, the majority of temporary visas are “single intent,” which implies that the individual applying for the visa or using it to enter the United States is expressing their “non-immigrant intent.” This means that their intention is to use the visa solely for the specified purpose (such as tourism, business, or study) and to subsequently depart for another country.

People who possess visas such as B, F, J, M, Q, and TN, as well as those who utilize the Visa Waiver Program / ESTA, are prohibited from entering the United States with the intention of establishing a permanent residence. If they subsequently marry or apply for a green card (or engage in specific activities, such as unauthorized employment or study), they are at risk of being found to have misrepresented their original intent.

It is of the utmost importance that “single intent” visa-holders are permitted to modify their plans once they have arrived in the United States, and to either marry or apply for a green card, provided that they sincerely entered the country with the intention of departing. This poses a challenging question: how can the government determine whether an applicant intended to depart or not?

In order to resolve this issue, the 90-day rule is implemented by USCIS. This rule stipulates that temporary visa holders who marry or file for a green card within 90 days of their arrival in the United States are automatically presumed to have misrepresented their original intentions.

Check Also: US Boundless Immigration Weekly – Visa Changes

Visa holders may still be able to persuade USCIS officers that their initial intent was sincere, particularly if their personal or professional circumstances undergo substantial and unanticipated changes during their initial 90 days in the United States. However, it is a challenging endeavor, and it is generally advisable to refrain from taking any actions that could potentially raise concerns regarding the 90-day rule.

The 90-day rule vs. the 30/60-day rule

Before September 2017, the United States Citizenship and Immigration Services (USCIS) implemented the “30/60-day rule” to assess the non-immigrant intent of applicants. Adjustment of status applications submitted within 30 days of entering the United States were frequently rejected due to the presumption that they involved a misrepresentation of intent. Those submitted between 30 and 60 days of entering the United States were considered suspicious, but not necessarily automatically disqualifying. Generally, applications submitted more than 60 days after entering the United States were not perceived as problematic.

The current 90-day rule, which is now applicable to all applicants, was implemented by USCIS in September 2017. This rule supplanted the 30/60-day rule. The 30/60 rule is less stringent than this one, as applicants are presumed to have misrepresented their intentions if they marry or register for an immigrant visa within 90 days of entering the United States, unless they can provide evidence to the contrary. The 90-day window also implies that individuals who are admitted to the United States for 90-day periods, such as numerous visa-waiver program users, have restricted options for adjusting their status without violating the 90-day rule.

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Who Does the 90-Day Rule Apply To?

Nonimmigrant visa holders who enter the United States for a transient stay are subject to the 90-day rule, with the exception of those who utilize “dual intent” visas, such as H or L visas.

If a “single-intent” visa holder engages in the following during the first 90 days of their stay in the United States, they may be accused of misrepresenting their original intentions when applying for a visa or entering the country:

• Participating in employment that is not authorized
• Enrolling in an unauthorized course of study (without a valid student visa)
• Engaging in matrimony with a U.S. citizen or green card holder
• Submitting a green card application for “adjustment of status” (Form I-485)

The visa-holder will not be automatically presumed to have misrepresented their original intent if any of these events occur after their first 90 days in the United States. Nevertheless, government officials may still conclude that a visa applicant has misrepresented their intentions if specific evidence is presented during the application process.

For instance, an applicant who discloses during their interview that they initially arrived in the United States with the intention of residing here may encounter complications, regardless of whether they are married or have applied for a green card more than 90 days after their arrival.

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What Happens If You Break the 90-Day Rule?

The 90-day rule is not a fixed rule; rather, it provides USCIS officers with guidance when evaluating visa applications. This guidance is used to determine whether an individual misrepresented their original intent when they initially applied for a visa and traveled to the United States.

The USCIS officer who reviews the case of a single-intent visa holder will presume that they entered the United States for reasons other than those they originally asserted if they marry or submit a green card application within 90 days of their arrival. The government takes the perceived deception extremely seriously. The applicant’s green card application would be likely to be denied, and their current visa could be revoked.

Nevertheless, it is crucial to bear in mind that the 90-day rule permits applicants to present evidence that contradicts the presumption of misrepresentation of intent, despite the fact that it instructs USCIS officers to assume the opposite. An applicant may still be granted a green card if they can persuade the USCIS officer that they arrived in the United States without misrepresenting their intentions and that their intentions sincerely changed within the 90 days of their arrival.

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How to Prove Non-Immigrant Intent:

A marriage-based green card application will not necessarily be denied if the applicant married or submitted their application within 90 days of their initial entry into the country. Nevertheless, the applicant will be required to demonstrate that they did not misrepresent their plans and will be questioned about their original intentions by a USCIS officer.

This is considerably simplified when there is clear evidence that the applicant’s circumstances have changed as a result of circumstances beyond their control. For instance, if an applicant had intended to visit their spouse in the United States for a brief period, but a sudden deterioration in their spouse’s health necessitated their continued presence in the country, they would not have violated the 90-day rule, as their intentions were altered after they arrived in the country.

During their green card interview, they could demonstrate this by providing documentation of their spouse’s health issues and evidence of their original intention to leave the country (such as continuous employment, property ownership, or travel bookings).

It is difficult to predict the outcome of any particular case, as the final decision is subject to the discretion of individual USCIS officers. For the purpose of documenting their original intentions and their altered circumstances, applicants should maintain meticulous records. However, it is crucial to be entirely candid; any indication of deception or misrepresentation could potentially result in obstacles, both in the present and in the future.

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Other Considerations:

• How to calculate 90 days: It is crucial for an applicant to determine whether they have spent more than 90 days in the country when considering the 90-day rule. An applicant can readily determine this by subtracting 90 days from the most recent entry date in their I-94 travel record, which is officially referred to as the “Form I-94 Arrival/Departure Record.” For instance, if the entry date on the I-94 of a “single-intent” visa-holder is April 1, 2019, the date 90 days later. The 90-day rule will not be violated by the applicant as long as they do not marry or submit a green card application prior to that date.
• Repeated entries: It is crucial to note that the 90-day rule is only applicable to the most recent entry of an applicant into the United States. In other words, the “90-day clock” is reset when an individual remains in the country for more than 90 days, then departs and subsequently returns. An applicant must wait 90 days from their most recent entrance into the United States before marrying or attempting to modify their status in order to avoid violating the 90-day rule.
• Multiple visas: The most recent visa is also subject to the 90-day rule. For instance, the 90-day rule would only be applied to the visitor’s most recent entry and visa status if they initially entered the United States on a dual-intent H-1B visa and subsequently departed and returned using the single-intent Visa Waiver Program.

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