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The USCIS 90-Day Rule

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September 26, 2022

Key Takeaways

It is extremely important to be honest about your intentions when you apply for a U.S. nonimmigrant visa. Misrepresenting your intentions for traveling to the United States will land you in a lot of trouble with the U.S. government. One of the ways that U.S. Citizenship and Immigration Services (USCIS) confirms your travel intent is the 90-day rule.
The 90-day rule 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. This article explains the 90-day rule, including how immigration officials apply it, the consequences of breaking the rule, and how to prove nonimmigrant intent on your U.S. visa application.

Table of Contents

What is the 90-day rule?

U.S. Citizenship and Immigration Services (USCIS) uses the 90-day rule when assessing immigration applications. When a temporary visa holder marries or applies for a green card within 90 days of entry to the United States, USCIS assumes that the applicant misrepresented their original intentions. Most temporary visas are “single-intent. That means that the visa holder declared that they only intended to use their visa for a specific purpose. Often, this purpose includes tourism, business, or study. After some time, the visa holder must leave the country.

If you used the Visa Waiver Program/ESTA or entered the United States with a B, F, J, M, Q, or TN visa, the 90-day rule applies. The U.S. Department of State’s Foreign Affairs Manual (FAM) classifies these visas as nonimmigrant visas. These are conditional visas. They do not allow you to stay in the United States permenantly. So, if you marry or apply for a green card less than 90 days after your arrival, USCIS may have an issue. Misrepresenting your original intentions can seriously hurt your chances of getting a green card.

What if your plans change after you enter the U.S.?

You can change your immigration plans after entering the country if an unexpected circumstance arises. USCIS will not fault you for changing your plan after you got here, as long as you originally intended to leave the United States before you entered on your visa. If you break the 90-day rule, you’ll still have a chance to convince USCIS that you did not misrepresent your original intentions. For instance, USCIS may not fault you if a personal, family, or professional situation suddenly changes during your stay. That said, always avoid breaking the 90-day rule if you can. If you break it, the burden is on you to prove your original intentions.

How do you count the 90 days?

To accurately count your 90 days, add 90 days to your most recent U.S. entry date on your Form I-94 travel records (the “Arrival/Departure Record”). The 90-day rule only applies to your most recent entry. If an older stay exceeded 90 days, but you left the United States and returned, USCIS resets your 90 days. You’ll have to wait an additional 90 days to honor the rule. 

The rule also only applies to your most recent visa. If you were previously in the United States on a dual-intent visa, but returned later with a single-intent visa, USCIS will only consider your most recent visa status.

How is the 30/60 rule different?

Before September 2017, U.S. Citizenship and Immigration Services (USCIS) used the 30/60-day rule instead of the 90-day rule. According to the earlier USCIS policy:

  • If you filed an adjustment of status application within 30 days of entering the United States, USCIS assumed you misrepresented your intent and usually denied your application. 
  • If you filed between 30 and 60 days of entering, USCIS flagged your application as suspicious but did not outright disqualify you from green card status. 
  • If you filed 60 days or later after your arrival, USCIS did not view your application as suspicious. 

Now, USCIS has replaced this rule with a new 90-day rule for all applicants. This means that when you for a green card, you must be careful about timing.

Who does the 90-day rule apply to?

The 90-day rule applies to those with “single-intent” nonimmigrant status who came to the United States under a temporary stay. The rule does not apply to “dual intent” visa holders, including the H-1B visas or L visas.

Sometimes, single-intent visa holders break one of the following immigration law rules in their first 90 days here:

  • They engage in unauthorized employment.
  • They enroll in an unauthorized course of study without the appropriate student visa.
  • They marry a U.S. citizen or lawful permanent resident (green card holder).
  • They attempt a change of status by filing Form I-485, the “Application to Register Permanent Residence or Adjust Status”.

If a single-intent visa holder does any of the above, U.S. Citizenship and Immigration Services (USCIS) may find that they misrepresented themselves when they originally applied for their visa. If you apply from within your home country through consular processing, the National Visa Center (NVC) may also find misrepresentation.

If a single-intent visa holder does any of the above actions outside of the initial 90-day period, USCIS won’t immediately assume they misrepresented their original intentions. But USCIS may discover evidence of willful misrepresentation during your application process. For example, if you say that you came to the United States and intended to remain here during your green card interview, USCIS or your consular officer has reason to doubt your original intentions and may deny your application.

What are the consequences of breaking the 90-day rule?

The 90-day rule is a guiding principle. Breaking the rule does not always mean that U.S. Citizenship and Immigration Services (USCIS) will deny your application. USCIS officers use the 90-day rule to assess whether applicants misrepresented their original intentions before traveling to the United States.

USCIS immigration officers assume that when a single-intent, temporary visa holder marries or applies for a green card within 90 days of entering the country, the applicant misrepresented themselves. The U.S. government takes this very seriously. They will likely deny your green card application and may revoke your visa. This can lead to deportation. To prove that you did not misrepresent yourself, you need to provide additional evidence. If you can convince them of this, you might still have your application approved.

If you have broken the 90-day rule, you and your spouse should consult an immigration lawyer to figure out how to address this situation. You may find low-cost or free legal advice on USA.gov’s Legal Aid website.

Proving nonimmigrant intent

You won’t necessarily lose out on your chances for a green card if you break the 90-day rule. If you have broken the rule, be prepared to answer USCIS’s questions. USCIS will ask about your original intentions when traveling to the United States. You must convince your USCIS officer that you did not misrepresent your initial intentions to gain their approval. At your green card interview, you may present evidence of your intent to return to your home country. Such evidence can take the form of continuing employment, property ownership, and travel bookings.

If your situation changed because of factors outside your control, proving your nonimmigrant intent should be easier. For example, suppose you intended to leave the United States but stayed after your spouse or a family member faced a sudden health emergency. In this case, you could present your situation as evidence that your intentions changed only after you arrived in the country.

Your USCIS officer will make the final judgment on your nonimmigrant intent. Be sure to keep thorough records to prove your nonimmigrant intent. Always be honest. Misrepresenting facts or lying can hurt your application.

Conclusion

Applying for a green card can be complicated, but working with a good immigration attorney can make it easier. As a green card holder, you’ll gain access to residential, work, and travel immigration benefits and will gain eligibility to become a United States citizen. If you can't afford the attorney fees and don't want to handle your green card or citizenship cases alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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