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Basic Principles
While a spousal green card can provide a number of benefits – not least of which is the ability to work anywhere in the country – it’s a good idea to approach the application process in a thoughtful, measured manner. This is especially true, as we shall see, when applying from within the United States (in a process known as “adjustment of status”).
The U.S. immigration system is an intricate web of rules and regulations that, when not thoroughly considered, can lead to unforeseen delays and, in some cases, denial. One node in this regulatory patchwork is known as the “90-day rule” – a simple, though oft-forgotten, requirement that can lead to a number of stultifying side-effects, including:
Making future visa applications more difficult
Halting the green card application process
Forcing the applicant to give up their current non-immigrant visa
The good news is that it’s relatively easy to avoid this pitfall. In what follows, we’ll review the 90-day rule, with an eye toward a smooth, hurdle-free green card application process.
Note: In what follows, we will sometimes, for the sake of readability, use the word “beneficiary” to refer to the visa holder.
You can use the following table of contents to navigate to the relevant section:
Defining Our Terms
Proving Intent
Avoiding Certain Activities
Understanding the Consequences
FAQ
Defining Our Terms
To begin with, visas in the U.S. can fall under one of the two following categories:
Dual intent
OR
Single intent
It’s important to understand these basic concepts in order to understand the 90-day rule, as we’ll see below.
Dual Intent
With a dual intent visa, the beneficiary may adjust their status to permanent resident even while maintaining the original non-immigrant status. Examples of dual intent visas include:
Sadly, a majority of the available visas are not dual intent, which means it’s a good idea to understand precisely what is meant by “single intent.”
Single Intent
When applying for a single intent visa, the applicant essentially agrees that they have no other intention than to:
Enter the country
Do the activity permitted by their visa
Then leave the country once they are finished
If they have plans outside of this single intent, they are in violation of U.S. immigration law. But because “intent” is such a tricky concept – that is, because it’s impossible to know what any one person is thinking at any given time – U.S. Citizenship and Immigration Services (USCIS) employs what is known as the 90-day rule, which we’ll define in the following section. Some examples of single intent visas include:
The 90-Day Rule, Defined
So what is the 90-day rule? If, within 90 days of entering the United States, the single-intent visa holder gets married – or if they submit an application for a green card – USCIS will likely assume that this person came into the country under false pretenses. If, however, the same person were to get married or apply for a green card after this initial 90-day period, the U.S. government would not make such an assumption.
The 90-day rule is not a fait accompli – that is, it isn’t a total dead end. It’s, rather, a general guideline to help immigration officers determine whether an applicant has misrepresented their intentions. This means anyone subject to the 90-day rule can provide counterevidence to challenge the decision (which we’ll explore in the section entitled “Proving Intent”).
Generally speaking, this rule applies to most temporary visas, excluding those visas designated as “dual intent” (see above). Anyone required to leave the country within 90 days – such as beneficiaries of the visa waiver program – may face some serious challenges if they want to apply for a green card.
A Pre-History
The 90-day rule hasn’t always been the law of the land. Before the law was changed on September 17th, 2017, USCIS enforced the 30/60-day rule, which by all accounts was less strict than the current version. In most cases, USCIS would accept applications filed after the 60-day window. If the visa holder submitted a green card application between 30 and 60 days following their entry into the U.S., USCIS would approach the applicant skeptically but wouldn’t outright refuse to review the case. If, however, a beneficiary were to apply for a green card within 30 days of their arrival, USCIS would consider them to have falsely stated their intent when they first applied for their initial visa.
Proving Intent
While the 90-day rule provides a concrete basis for determining whether a visa holder has misrepresented their intent, it is not irrefutable. A temporary visa beneficiary could apply for a green card within 90 days of their arrival and still argue that their intentions have changed due to unforeseen circumstances. To make such an argument, it’s a good idea to keep thorough records throughout the visa process.
A temporary, single intent visa holder could, for instance, argue that, during their stay, their spouse’s health took a turn for the worse, leading the beneficiary to stay in the United States for longer than anticipated. During the green card application process, the visa holder could then provide testimony, medical paperwork, and any other evidence substantiating their claim. To strengthen their case, they could then present any documents showing that, prior to their spouse falling ill, they intended to leave within the agreed-upon timeframe. Supporting evidence might include:
Travel itinerary
Property lease or deed
Employment paperwork
Avoiding Certain Activities
Anyone in the United States on a temporary, single intent visa should, within 90 days following their arrival, avoid certain red-flag activities, including:
Adjusting status to permanent resident
Marrying a permanent resident or U.S. citizen
Working for a U.S. employer without the proper authorization
Starting a course of study without a student visa or without prior authorization
Regardless of whether visa holders abide by the 90-day rule, USCIS may, at any point during the green card application process, find proof demonstrating that the applicant had misstated their intention. A slip of the tongue during the interview process could send a signal to the USCIS officer, leading to further action.
Understanding the Consequences
Failure to prove intent could prove fatal to the visa holder’s green card prospects. Not only could their spousal green card application be denied, but their temporary visa status could be taken away. For this reason, it’s important to reiterate the point made in the introduction of this guide: before diving head first into the adjustment of status process, the beneficiary should take stock of their situation and move cautiously forward.
FAQ
What if I’ve used more than 1 visa?
USCIS will only consider the most recent visa when evaluating your situation. If, for example, you had previously entered the country using an L-1 work visa but then re-entered using a B-1 visa, the immigration officer would consider you to be in the United States on a single-intent visa.
Note: The B-1 visa is considered single intent and the L-1 dual intent.
What if I left and re-entered?
The 90-day count will restart every time you re-enter the United States. So even if you leave the country on the 89th day and come back the following week, USCIS will restart their count. In brief, 90 days means 90 days from the most recent arrival in the United States.
What constitutes 90 days?
Finding out whether you’ve been in the United States for 90 days is relatively simple. All you need to do is track down your Form I-94 (officially called the “Arrival/Departure Record”) and locate the most recent arrival. Take that date and add 90 days. If you entered the country using a single intent visa on November 1st, 2022, you will be free to file your spousal green card application 90 days later on January, 30th 2023.
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