What is the 90-day rule?
The “90-day rule” refers to a guideline used by U.S. immigration officials to determine whether an individual who enters the United States on a nonimmigrant visa, such as a tourist visa (B-2 visa), violated their status if they engage in certain activities that suggest an intent to immigrate or adjust their status to permanent resident. This rule applies to individuals who enter the U.S. on a nonimmigrant visa and later marry a U.S. citizen or apply for adjustment of status to become a lawful permanent resident (green card holder).
Here’s how the 90-day rule generally works:
- Nonimmigrant Intent: Nonimmigrant visas are issued to individuals who have a temporary purpose for entering the United States, such as tourism, business, or education. These individuals are expected to maintain their nonimmigrant intent and return to their home country after the authorized stay.
- Adjustment of Status: If an individual enters the U.S. on a nonimmigrant visa and then marries a U.S. citizen or applies for adjustment of status to become a lawful permanent resident, immigration officials examine the timing of the marriage or adjustment application.
- 90-Day Window: If the individual marries a U.S. citizen or files an adjustment of status application within 90 days of entering the U.S. on a nonimmigrant visa, it may raise questions about their original intent when entering the country. Immigration officials may suspect that the individual had preconceived plans to immigrate to the U.S. when they applied for the nonimmigrant visa.
- Presumption of Fraud: If an individual applies for adjustment of status within 90 days of entry, immigration officers might presume that the individual misrepresented their original intent when obtaining the nonimmigrant visa. This presumption could lead to a finding of fraud or misrepresentation.
It’s important to note that the 90-day rule is not a strict legal requirement but rather a guideline that immigration officials use when assessing cases. Violating the 90-day rule does not automatically result in a denial of adjustment of status, but it might lead to closer scrutiny of the individual’s circumstances and intentions.
If you’re considering applying for adjustment of status after entering the U.S. on a nonimmigrant visa, it’s advisable to consult with an immigration attorney to ensure that you understand the implications of the 90-day rule and how it might affect your specific situation.
How do I comply with the 90-day rule?
Complying with the 90-day rule is important to ensure that you follow the guidelines set by U.S. immigration officials and avoid potential complications when applying for adjustment of status or other immigration benefits. While the 90-day rule is not a strict legal requirement, it’s a guideline that immigration officers consider when evaluating cases involving nonimmigrant visa holders who marry U.S. citizens or apply for adjustment of status within 90 days of entry. Here are some steps to help you comply with the 90-day rule:
- Understand Your Intent: When entering the U.S. on a nonimmigrant visa, it’s important to have a clear understanding of your intentions and the purpose of your visit. If your intention is to eventually apply for adjustment of status and become a permanent resident, you should carefully consider the timing of your actions.
- Wait Before Taking Action: If you enter the U.S. on a nonimmigrant visa and plan to marry a U.S. citizen or apply for adjustment of status, it’s advisable to wait until after the 90-day period has passed before taking any such actions. This can help avoid raising questions about your original intent when entering the country.
- Maintain Nonimmigrant Status: During the initial 90-day period, focus on maintaining your nonimmigrant status. Engage in activities consistent with the purpose of your visa (e.g., tourism, business, education) and avoid actions that could suggest an intention to immigrate.
- Consult an Immigration Attorney: If you’re considering marrying a U.S. citizen or applying for adjustment of status, consult with an immigration attorney to understand the implications of the 90-day rule in your specific situation. An attorney can provide guidance on the best course of action and help you avoid any unintended consequences.
- Demonstrate Genuine Intent: If you decide to marry a U.S. citizen or apply for adjustment of status after the 90-day period, ensure that your actions demonstrate genuine intent. Provide documentation that supports the authenticity of your relationship and your reasons for seeking permanent residency.
- Be Prepared for Scrutiny: If you do marry or apply for adjustment of status within the 90-day period, be prepared for closer scrutiny from immigration officials. They may inquire about your original intent and seek to ensure that your actions are consistent with U.S. immigration laws and regulations.
It’s important to remember that immigration laws and regulations can change, and individual cases can vary. The 90-day rule is just one factor that immigration officers consider when evaluating cases. If you have questions about your specific circumstances and how they might be affected by the 90-day rule, it’s recommended to seek guidance from an immigration attorney who can provide personalized advice based on the most current laws and regulations.
Does the 90-day rule apply to dual intent visa holders?
The 90-day rule is primarily relevant to nonimmigrant visa holders who are on visas that are typically considered “single intent” visas. Single intent visas are issued for temporary purposes, and holders are expected to maintain the intent to return to their home country after their authorized stay in the U.S. Examples of single intent visas include tourist visas (B-2), student visas (F-1), and exchange visitor visas (J-1).
Dual intent visas, on the other hand, allow for a combination of temporary and immigrant intent. Holders of dual intent visas are permitted to have both the intention to temporarily stay in the U.S. for a specific purpose and the intention to potentially apply for permanent residency in the future. An important aspect of dual intent visas is that they recognize the possibility of pursuing a green card while in the U.S., which is not typically allowed for single intent visa holders.
Examples of dual intent visas include certain employment-based visas, such as the H-1B and L-1 visas. These visa holders can pursue permanent residency through employment-based immigrant categories without violating the intent of their nonimmigrant visa.
As a result, the 90-day rule may not apply to dual intent visa holders in the same way it does to single intent visa holders. Dual intent visa holders are generally allowed to pursue permanent residency without concerns about violating their visa status, as long as they comply with the rules and procedures associated with their visa category and the adjustment of status process.
However, it’s important to note that immigration regulations can be complex and subject to change. If you hold a dual intent visa and are considering pursuing permanent residency in the U.S., it’s advisable to consult with an immigration attorney who can provide guidance specific to your visa category and individual circumstances. They can help you understand the rules that apply to your situation and ensure that you navigate the immigration process correctly.
