Don’t rush things when adjusting status to a spousal visa
Marrying a Green Card holder or United States citizen opens the door to a marriage-based Green Card – but applicants who rush into things could fall foul of a U.S. Citizenship and Immigration Services (USCIS) rule designed to stop people from using temporary visas for unintended purposes.
The “90-day rule” is a USCIS guideline used to determine whether Green Card applicants applying from within the United States misled government officers when they were granted visas or admitted to the country. It’s a simple rule, but applicants who get it wrong could find their Green Card applications denied and their current visas revoked. They could also find it hard to obtain U.S. visas in future.
That means it’s vital to understand how USCIS applies the 90-day rule. People who get married or apply for Green Cards without paying attention to the 90-day rule could wind up in serious trouble.
In this guide we’ll cover:
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What is the 90-day rule?
Some U.S. visas, like the H-1B or L-1 work visas, are what’s known as “dual intent,” which means the holder is allowed to use the visa while simultaneously planning to relocate permanently to the United States. People with dual intent visas don’t need to worry about the 90-day rule.
Most temporary visas, though, are “single intent,” which means that a person applying for such a visa or using it to enter the United States is stating their “non-immigrant intent” — that is, their intention is to use the visa only for the specified purpose (such as tourism, business, or study) and to leave again afterwards.
People holding such visas — including B, F, J, M, Q, and TN visa-holders, as well as people using the visa-waiver program — aren’t allowed to come to the United States with the intention of remaining permanently in the United States. If they subsequently marry or apply for a Green Card (or conduct certain other activities, such as unauthorized work or study) they risk being found to have misrepresented their original intent.
Crucially, “single intent” visa-holders are allowed to change their mind once they’re in the United States, and marry or apply for a Green Card, as long as they genuinely came to the country with the original intention of leaving. That raises a difficult question: how can the government know whether an applicant originally intended to leave or not?
To solve that problem, USCIS uses the 90-day rule, which states that temporary visa holders who marry or apply for a Green Card within 90 days of arriving in the United States are automatically presumed to have misrepresented their original intentions.
Visa holders may still be able to convince USCIS officers that their original intent was genuine, especially if their personal or professional situation changes significantly and unexpectedly during their first 90 days in the United States. But it’s an uphill struggle, so it’s usually best to avoid any actions that could raise concerns over the 90-day rule.
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The 90-day rule vs. the 30/60-day rule
Prior to September 2017, USCIS used a “30/60-day rule” to evaluate an applicant’s non-immigrant intent. Adjustment of status applications filed within 30 days of entering the United States were presumed to involve misrepresentation of intent, and thus were often denied, while applications filed between 30 and 60 days of entering the United States were viewed as suspicious, but not necessarily disqualifying. Applications filed more than 60 days after entering the United States were generally not seen as problematic.
In September 2017, USCIS replaced the 30/60-day rule with the current 90-day rule, which now applies to all applicants. It is stricter than the 30/60 rule since unless they can prove otherwise, applicants are presumed to have misrepresented their intentions if they marry or apply for an immigrant visa within 90 days of entering the United States. The 90-day window also means that people admitted to the United States for 90-day periods, such as many visa-waiver program users, have limited scope to adjust status without triggering the 90-day rule.
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Who does the 90-day rule apply to?
The 90-day rule applies to all nonimmigrant visa holders who enter the United States for the purposes of a temporary stay, other than those who use “dual intent” visas such as H, L, or O visas.
If during the first 90 days of their stay in the United States a “single-intent” visa holder engages in the following, they could be judged to have misrepresented their original intentions when applying for a visa or entering the United States:
Engaging in unauthorized employment
Enrolling in an unauthorized course of study (without a proper student visa)
Entering into a marriage with a U.S. citizen or Green Card holder
Filing an “adjustment of status” Green Card application
If any of these events happen after the visa-holder’s first 90 days in the United States, they won’t automatically be presumed to have misrepresented their original intent. However, government officers could still determine that a visa applicant misrepresented their intent if specific evidence arises in the course of their application process. If an applicant mentions during their interview that they originally came to the United States with the intention of remaining, for instance, they could face problems even if they were married or applied for a Green Card more than 90 days after entering the country.
What happens if you break the 90-day rule?
The 90-day rule isn’t set in stone; rather, it serves as guidance for USCIS officers when assessing visa applications, as a way of determining whether someone misrepresented their original intent when they first sought a visa and traveled to the United States.
If a single-intent visa holder gets married or files a Green Card application within 90 days of entering the United States, the USCIS officer who reviews their case will presume that they entered the United States for reasons other than they originally claimed. That perceived deception is taken very seriously by the government: the applicant would likely have their green card application denied, and their existing visa could also be revoked.
However, it’s important to remember that while the 90-day rule tells USCIS officers to presume misrepresentation of intent, it also allows applicants to present evidence to the contrary. If an applicant can convince the USCIS officer that they came to the United States without misrepresenting their plans, and that their intentions genuinely changed during the 90 days after they arrived in the United States, they may still be approved for a Green Card
How to prove non-immigrant intent
A marriage-based Green Card application will not necessarily be denied if the applicant married or filed their application within 90 days of first entering the country. But the applicant will face questions about their original intentions, and will have to convince a USCIS officer that they didn’t misrepresent their plans.
That is significantly easier when there’s clear evidence that the applicant’s circumstances changed due to situations beyond their control. For example, if an applicant intended to visit their spouse in the United States for a short period, but a sudden decline in their spouse’s health prompted them to remain in the United States, they would not have violated the 90-day rule because their intentions changed after they arrived in the country. They could show this by presenting documentation of their spouse’s health problems, along with evidence of their original intention to leave the country (such as continuing employment, property ownership, or travel bookings) during their Green Card interview.
The final decision is left to the judgment of individual USCIS officers, which means it’s hard to know for sure how any given case will be decided. Applicants should keep careful records so that they can document both their original plans and their changed circumstances. It’s important to be completely honest, though: any sign of deception or misrepresentation could raise challenges, now and in the future.
How to count 90 days:
When thinking about the 90-day rule, it’s important for an applicant to know whether they’ve spent more than 90 days in the country. An applicant can figure this out easily by taking the most recent entry date from their
(officially called the “Form I-94 Arrival/Departure Record”) and adding 90 days. For example, if the entry date on a “single-intent” visa-holder’s I-94 is April 1, 2019, then 90 days later would be June 30, 2020. As long as the applicant doesn’t marry or file a Green Card application before that date, they won’t run into trouble with the 90-day rule.
Importantly, the 90-day rule applies only to an applicant’s most recent entry to the United States. In other words, staying more than 90 days on one stay, then leaving the country and returning, resets the “90-day clock.” To avoid breaking the 90-day rule, an applicant must wait 90 days since their
entry to the United States before marrying or seeking to adjust their status..
The 90-day rule also applies to the most recent visa. For example, if a visitor originally traveled to the United States on dual-intent H-1B visa, then later left and returned using the single-intent Visa Waiver Program, only their most recent entry and visa status would be considered for the purposes of applying the 90-day rule.
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