The 90-Day Rule Explained

If you are an immigrant, one of the many benefits of marrying a U.S. citizen or permanent resident is the possibility of becoming a green card holder or U.S. citizen yourself. However, the United States Citizenship and Immigration Services (USCIS) has a set of rules that have been established to ensure that such marriages are not based on the sole purpose of obtaining a green card. The 90-day rule, for instance, is a good example of such rules. This article covers everything you need to know about this rule and how it could determine your eligibility for a green card, and citizenship afterward.

What Is The 90 Day Rule?

The 90-day rule is a USCIS guideline that determines whether an individual applying for a permanent resident card, also known as a green card, within the United States purposely misled immigration officials prior to being granted entry into the country. If the USCIS determines that indeed, an applicant provided misleading information to immigration officials in order to gain entry into the country to apply for a green card, their applications will be denied and their existing visas revoked. As a result, such applicants may find it difficult to get a visa in the future.

How Does The 90 Day Rule Work?

To understand how the 90 day rule works, it is important to define two types of visas: dual intent and single intent.

Dual Intent Visa

The dual intent visa is a special type of visa given to immigrants to permit them to travel to the United States, while at the same time planning to relocate permanently. It comes in form of H-1B or L-1 work visas. Individuals with this type of visa are not affected by the 90-day rule.

Single Intent Visa

This is usually the most common type of visa offered by the U.S. government to immigrants. It is awarded to immigrants who have no intention of permanently relocating to the United States. It is meant for tourism, visitation, study, among other related reasons. With this type of visa, the immigrant must return to their home country before the deadline provided by the government official at the point of entry. The deadline is usually stamped on the immigrants’ passport prior to being granted entry into the United States.

So what happens if a nonimmigrant visa holder changes their mind, and decides to marry a United States citizen or green card holder while in the country? This is where the 90-day rule comes in.

The United States government allows nonimmigrant visa holders to change their minds after entering the country. However, this should be done only if their initial intention to enter the United States with a nonimmigrant visa was not for the sole purpose of obtaining a green card upon arrival.

Therefore, the 90-day rule stipulates that nonimmigrants who apply for a green card within 90 days after their arrival to the United States are presumed to have misled immigration officials regarding their intentions to come to the United States. As a result, their green card application may be denied, their visa revoked, consequently ruining their chances of ever being granted a visa in the future.

How To Get A Green Card | Read more

A Rare Exception To The 90 Day Rule

In some rare cases, green card applications that have violated the 90-day rule may be able to convince USCIS officials that their intention to apply for a green card was genuine. While is it possible to convince the USCIS, this approach has a very low success rate. For best results, it is always advisable to wait until the end of the 90 day period before applying for adjustment of status.

Understanding The 30 – 60 Day Rule

Prior to the adoption of the 90 day rule in September 2017, the USCIS had the 30 – 60 day rule.

The 30 – 60 day rule stipulated that adjustment of status application filed within the first 30 days after arrival into the United States were considered to be suspicious. It was believed that such applications involved non-immigrants who misled USCIS officers about their intentions to visit the United States, and as a result, they were often denied. However, for adjustment of status applications filed within 60 days of arriving into the United States, they were considered questionable, but not necessarily disqualified.

What Is Considered A Violation Of The 90 Day Rule?

There are different situations that may amount to a violation of the 90-day rule, according to the U.S. Department of State. Here is a quick look at the most common ones:

Marriage To A Green Card Holder Or United States Citizen

Even though this has been mentioned before, we cannot stress enough just how important it is to wait at least 90 days after arriving in the United States before deciding to get married. Most marriages between an immigrant and a green card holder or U.S. citizen, held within 90 days of the immigrant spouse’s arrival into the United States, may be considered as marriage fraud by the government. This raises suspicion, especially if the immigrant spouse files for adjustment of status right after getting married.

Studying Without A Student Visa

When you enter the United States as a visitor, the U.S. government expects you to return to your home country before the expiry date stamped on your passport at the point of entry. If you decide to enroll in an authorized course of study without a student visa within 90 days after entering the United States, you may be considered to have violated the 90-day rule.

Seeking Employment In The United States

There are certain types of visas given to immigrants for the sole purpose of seeking employment in the United States. If your visa is not employment-based and you seek employment within 90 days after arriving in the United States, you may be considered to have violated the 90-day rule.

What Happens If You Break The 90 Day Rule?

As explained earlier, this rule applies to nonimmigrants who are in the United States on a temporary visa. If found to have violated the rule, their application for permanent resident status may be declined, and their visa revoked. Additionally, due to the broken trust between the individual with a nonimmigrant status and the U.S. government, their chances of obtaining a visa in the future will drop drastically.

However, it is also important to note that even though the U.S. government strictly abides by this rule, it also provides the immigrant in question with a chance to prove that they were not involved in misrepresentation of their intent to travel to the U.S. Therefore, the 90-day rule may be overruled if the USCIS officer establishes that the person applying had pure intentions.

How To Calculate The 90 Day Rule

It is one thing to know about the 90-day rule and a totally different thing to understand when it comes into effect. The easiest way to find out if you are within or outside the 90 day period is to take a look at your Form I-94 Arrival/Departure Record. This is the form that keeps all your records of your arrival to and departure from the United States.

On your I-94, locate your arrival date, add 90 days to it, and then compare the resulting date with the date of filing for your application to adjust status. If it falls within the first 90 days, then you may be considered to have violated this rule. On the other hand, if it falls outside the first 90 days since you entered the country, you may not have much to worry about, unless the application itself is fraudulent.

Frequently Asked Questions About The 90 Day Rule

Given that this rule can be quite confusing even for experienced travelers, this section answers some of the frequently asked questions.

Will The 90 Day Rule Still Count If I Leave The Country And Return At A Later Date?

This rule is more like a ticking clock that resets itself every time you leave the country. For example, if you are in the United States on a temporary visa, and then you decide to leave without extending your stay beyond the deadline provided by the Customs and Border Protection officer at the point of entry, the 90-day rule will restart when you reenter the U.S. When counting the 90 days, you only need to consider the days between your arrival date and the 90th day. If you leave the country and return, the count will start afresh from the most recent arrival date.

What Visa Is Considered When Counting The 90 Days?

The USCIS considers your most recent visa when counting the 90-day rule. For instance, if you travel into the United States with a dual intent visa, and then leave the country and return at a later date with a single intent visa, the USCIS will only consider your most recent entry visa status.

How Can I Prove Nonimmigrant Intent During A Visa Interview?

To prove that you do not intend to stay permanently in the United States after arrival, you must convince the CBP officer during a visa interview. This section covers some relevant documents that could be used to prove that you have ties to your home country, and you have no intention to stay in the U.S. at the end of your visit. These documents may include:

  • Proof of your connection to your home country (title deeds, business licenses, etc.)
  • Evidence of commitments in your home country, e.g. family
  • Proof of employment in your home country (because you are not expected to seek employment while in the United States unless you are on an employment-based visa)

Am I Guaranteed Of A Green Card If I Do Not Violate The 90 Day Rule?

The answer is NO. Prior to approving an application for adjustment of status, the USCIS officer is required to examine all factors; the 90-day rule is just one of them. For example, if you arrived in the U.S. on a nonimmigrant status and did not violate the rule but still filed for a green card, the USCIS may decline your application if the interviewing officer discovers that other aspects of your application were based on fraud or misinterpretation of your intention to immigrate into the country.

What Is The Difference Between Dual Intent and Single Intent Visas?

Dual intent visas allow immigrants to change their status while in the United States after living in the country for a certain number of years, depending on the specific visa. It is worth noting that each visa comes with its own conditions that must be strictly adhered to.

Single intent visas, on the other hand, are granted to immigrants who have only one intention; visiting the United States temporarily, and leaving before the expiry date provided on their passports.

What Is Misinterpretation?

When it comes to immigration-related issues, misinterpretation refers to the act of willfully providing false information to an immigration official. This may be in form of written documents or an oral interview with the official.

In addition, for a misinterpretation to be proven, it requires affirmative action from the alien. It must be proven, without any reasonable doubt, that the alien provided false information and that the immigration official believed it. In this case, silence or unwillingness to provide further information is not considered a misinterpretation.

What If I Made An Honest Mistake?

Let’s face it; people make mistakes. In the event that you provided the wrong information to an immigration official and the mistake was genuine, timely retraction may save your application. According to the USCIS, timely retraction refers to the act of providing the correct information to an immigration official immediately after realizing that the previous information was false. In this case, the keyword is ‘immediately.’ If you ever find yourself in such a situation, you may present truthful information at the first opportunity. While this does not necessarily guarantee that your application will be approved, it may decrease your chances of denial.

When it comes to matters concerning immigration, there are so many rules involved. These rules may be quite confusing, and that’s understandable, given that these laws vary depending on your specific immigrant visa and circumstances.

Whenever in doubt, it is always good to consult a professional immigration attorney from a respected law firm. It is never a great idea to ignore red flags in your application prior to submitting it to the USCIS. Such decisions come with drastic consequences.

For example, apart from the application being denied, you may also be banned from ever obtaining a U.S. visa in your entire life. Worse still, some other countries may also not grant you a visa if their immigration officials discover that you were previously involved in violations of immigration laws.

Read more | Can I Visit My Spouse In The United States While Waiting For My Green Card?