Understanding the USCIS 90-Day Rule and What It Means for Green Card Applicants

In September 2017, the American Department of State implemented a significant change for green card applicants. This change, known as the 90-day rule, replaced the previous 30/60-day rule and profoundly impacted people seeking to adjust their immigration status in America.

The core idea behind the 90-day rule hinges on the concept of misrepresentation. When you enter the U.S. on a temporary visa, you essentially declare your intended purpose for visiting.

The 90-day rule prevents people from abusing this system by using temporary visas, like tourist visas or student visas, as a stepping stone to permanent residency when that wasn’t their original intention.

So, how does this connect to green cards? Many people use marriage to a U.S. citizen or green card holder as a path to obtaining a green card themselves. This is legitimate, but the 90-day rule comes into play if you rush into a marriage green card application soon after entering the U.S. on a temporary visa.

USCIS views such actions suspiciously, potentially assuming you misrepresented your intentions when obtaining your visa. Breaking this rule can lead to serious trouble, including denial of your green card application, revocation of your current visa, and difficulty obtaining future U.S. visas.

Feeling overwhelmed already? Don’t worry! We have this guide to help you understand the 90-day rule and avoid breaking it. We’ll explain how it works, to whom it applies, and how to avoid complications, even if marriage is part of your plan.

So, let’s begin!

Why the 90-Day Rule Exists: Preventing Misrepresentation and Fraud

We know that the USCIS is responsible for processing immigration applications, so they want to ensure the system’s integrity and prevent people from using temporary visas as a backdoor to permanent residency.

Imagine someone entering on a tourist visa but secretly planning to marry a U.S. citizen and get a green card. The 90-day rule helps USCIS identify cases of misrepresentation where the applicant didn’t truthfully declare their intentions when applying for the visa.

What Is the USCIS 90-Day Rule for Temporary Visa Holders and Green Card Seekers?

To get to the bottom of the 90-day immigration rule for green cards seekers, you first must understand U.S. visas. The good part is that they come in only two flavors.

Dual-Intent Visas vs. Single-Intent Visas: What Is the Difference in the Context of the 90-Day Rule?

Dual intent visas allow holders to explore the possibility of permanent residency while using the visa for its intended purpose. They don’t fall under the 90-day rule because planning for permanent residency is an acceptable long-term goal for these visa holders.

Several categories fall under dual-intent status, with examples including H1-B work visas, K-1 fiancé(e) visas for those marrying a U.S. citizen within 90 days of their arrival, the visas for U.S. citizens or permanent residents’ relatives, L-1 intracompany transfer visas for employees transferring to a U.S. branch office, and O-1 visas for people with extraordinary abilities in various fields.

The single-intent visa category encompasses most temporary visas, such as B-tourist visas, F-student visas, and J-exchange visitor visas. When applying for these visas, you declare your intention to leave the U.S. after your visit (tourism, studies, etc.). This is where the 90-day rule comes into play.

WHAT IS THE 90-DAY RULE?

If you hold a single-intent visa and either:

Marry a U.S. citizen or green card holder, OR

Apply for a green card (via the I-485 adjustment of status form)

within 90 days of entering the U.S., USCIS will automatically presume you misrepresented your original intentions when applying for the visa.

In simpler terms, they’ll suspect you never intended to leave after your visit and used the visa to gain entry to get a green card.

The 90-Day Rule vs. The Old 30/60-Day Rule: A Shift in Scrutiny

Before September 2017, USCIS used a different system to assess potential misrepresentation, known as the 30/60-day rule. Here’s a breakdown of how it worked:

Applications submitted within 30 days were presumed to be based on misrepresentation and were usually denied. USCIS viewed such a quick turnaround as a strong indicator that the applicant never intended to leave the U.S.
Applications submitted between 30 and 60 days also raised suspicion but weren’t automatic disqualifications. USCIS would scrutinize these applications more closely to determine the applicant’s true intent.
Applications submitted after 60 days after entry were generally viewed less suspiciously. USCIS considered the applicant to have had sufficient time to fulfill their original intentions for the visa before seeking permanent residency.

The current 90-day rule represents a stricter approach. It applies to all applicants, regardless of when they file their green card application after entry. This means you have less leeway compared to the 30/60-day system.

Counting the 90 Days or How to Keep Track of Your Entry Date

As you can see, keeping track of the 90-day window is crucial. To calculate this timeframe, look at your Form I-94 (Arrival/Departure Record). Add 90 days to your most recent U.S. entry date listed there. The 90-day rule only considers your most recent entry and visa.

However, here are some additional points to remember:

If you had an older stay exceeding 90 days but left the U.S. and returned later, USCIS resets your 90 days. You’ll need to wait another 90 days from your most recent entry to be considered clear of the rule.
The rule only applies to the most recent visa you used to enter. For example, suppose you were previously in the United States on a dual-intent visa like an H-1B but returned later with a single-intent visa like a B-2 tourist visa. In that case, USCIS will only consider your B-2 visa and its associated entry date when applying the 90-day rule.

Who Does the 90-Day Rule Affect?

The 90-day rule casts a wide net over nonimmigrant visa holders entering the U.S. for temporary stays. As we said, it applies to single-intent visa holders and creates a presumption of misrepresentation if they take specific actions within the first 90 days of entering the U.S. These actions include:

Engaging in unauthorized employment (working without a work visa)
Enrolling in a course of study without the proper student visa
Marrying a U.S. citizen or green card holder
Applying to adjust status to permanent residency (Form I-485)

IMPORTANT! The 90-day USCIS rule serves as a guideline, not a strict cut-off. USCIS officers can still suspect misrepresentation even if these actions occur after 90 days, especially if additional evidence suggests you never intended a temporary stay. For example, mentioning during a visa interview that you originally planned to stay permanently could raise red flags, even if the marriage or green card application happened later.

How Does the 90-Day Rule Affect Green Card Seekers in Particular?

Suppose you want to apply for a green card. In that case, you must understand how USCIS views green card applications in the context of the post-entry 90-day rule, especially if you arrived in America on a temporary visa. Here’s the deal:

The USCIS officer will check your green card application for clues that you never intended a temporary stay when you got your visa. This could include things like selling your house back home before your trip. Think of it like this: it might raise some eyebrows if you came for a vacation but immediately started packing up your life in your home country.

To deny your application, USCIS needs strong evidence that you always planned to live in the U.S. permanently. Getting married to a U.S. citizen right after arrival could make them suspicious. Imagine this: saying “I do” within days of landing suggests you might have had permanent residency in mind all along, which could be a problem.

However, USCIS is usually more relaxed about marriage to a U.S. citizen than other situations where misrepresentation is suspected. Marrying someone isn’t inherently suspicious, especially if you’ve been in a genuine relationship. Nevertheless, if they ask questions, the burden of proof is on you, as you must demonstrate a bona fide relationship.

Here are some other specific actions that can set off alarm bells for USCIS officers:

Quitting your job, putting your studies on hold, closing your business, or selling assets back home before your trip to the U.S.
Scheduling a medical exam for a green card right away.
Filing Form I-485 (application to adjust status) shortly after arriving in the U.S.

IMPORTANT! It’s wise to wait a reasonable amount before applying for a green card on a temporary visa. The key is to avoid anything that suggests you never intended to leave. Even actions after 90 days can raise suspicion if they seem pre-planned for a permanent stay, so don’t jump the gun!

The 90-Day Rule Exceptions

The 90-day rule doesn’t apply equally to everyone. Here’s the breakdown:

Immediate Relatives (Not Guaranteed Exemption)

Generally, spouses, parents, and unmarried children of U.S. citizens are exempt from the misrepresentation concerns tied to the 90-day rule. This means they can typically apply for a green card even if they entered on a temporary visa and married or took other actions soon after arrival.

However, even though immediate relatives are exempt, the first 90 days in the U.S. can still be a bit of a gray area. USCIS might look closer at applications if there’s reason to believe the relationship isn’t genuine or the applicant never intended a temporary stay.

Visa Waiver Recipients

If you entered under a visa waiver program (allowing travel from certain countries without a visa interview), talk to an immigration attorney before applying for a green card adjustment of status, even as an immediate relative. The rules for these programs can be complex, and the 90-day window might still be relevant.

The Consequences of Breaking the 90-Day Rule

Breaking the 90-day rule can have serious repercussions for your immigration goals, including:

Denial of your green card application: This is the most likely outcome if USCIS believes you misrepresented your intentions.
Revocation of your current visa: If USCIS determines you used it for purposes other than those intended, they might revoke it.
Difficulty obtaining future U.S. visas: A negative mark on your American immigration record can make it challenging to get future U.S. visas of any kind.

Changing Your Plans After Entry: Unexpected Love, Job Offers, and Genuine Shifts

It’s important to understand that the 90-day rule doesn’t prevent you from changing your mind about leaving the U.S. after entry. However, the change in plans must be genuine and unexpected.

For example, suppose you fall in love with a U.S. citizen during your visit and decide to get married. That might be considered a legitimate change, especially if you can provide evidence of a pre-existing relationship. Similarly, a sudden job offer or an unexpected educational opportunity could also be considered valid reasons for wanting to stay longer.

Can You Overcome the 90-Day Rule?

Yes, but it’s an uphill battle. Suppose you find yourself in a situation where you’ve broken the 90-day rule but have a legitimate reason for wanting to stay. In that case, you must convince USCIS that your original intentions were genuine and that your situation had changed unexpectedly. This might involve providing strong evidence, such as:

Pre-existing relationship proof (photos, communication records) if you marry a U.S. citizen.
Documentation of an unexpected job offer or an acceptance letter to a prestigious educational institution.

Remember, the more convincing your evidence, the better your chances of overcoming the presumption of misrepresentation.

Proving Nonimmigrant Intent for Your Marriage Green Card Application

Marriage within 90 days of entering the U.S. on a temporary visa doesn’t automatically disqualify you from a green card. However, it does raise a red flag for USCIS officers, who will want to be convinced you weren’t planning to stay permanently all along (misrepresenting your intent).

The key to overcoming this hurdle is demonstrating a genuine change in circumstances beyond your control. Imagine you entered on a tourist visa to visit your spouse briefly. But due to an unexpected decline in their health, you decided to stay and care for them. This wouldn’t violate the 90-day rule because your intention to leave shifted after arrival.

In other words, at your green card interview, you can present evidence to support your initial plan to return home. Make sure you include:

Proof of ongoing employment in your home country
Documentation of property ownership you intend to maintain
Travel bookings or other evidence of a planned departure

Providing evidence becomes even more critical if your situation changes due to unforeseen circumstances, such as your spouse’s health issue. Gather documents that support both your original intent and the reason for staying, such as:

Medical records for your spouse’s health condition
Documentation showing your initial intended departure date

The ultimate decision rests with the USCIS officer reviewing your case. There’s no guaranteed outcome, so thorough record-keeping is essential. Remember, any attempt to mislead USCIS, whether now or in the future, could jeopardize your application. Transparency and a well-documented case are your best weapons in proving your genuine nonimmigrant intent and boosting your chance to a successful green card application.

Don't Get Stuck in the 90-Day Maze! Get Expert Help for Your Green Card Application!

The 90-day rule for adjusting your immigration status can feel like a confusing labyrinth, especially if English isn’t your first language. Filling out the complex paperwork can be daunting, and solving the puzzle of U.S. visa regulations can leave you feeling lost.

That’s where ImmigrationDirect experts come in to help!

Our team of veteran immigration specialists and lawyers has an in-depth understanding of the U.S. visa system. We’ll guide you through the process, helping you avoid the pitfalls of the 90-day rule and ensuring your application accurately reflects your genuine intentions. We’ll help you gather the necessary evidence and build a strong case that proves you didn’t misrepresent your original visa intent. By proactively addressing the 90-day rule concerns from the start, we minimize your risk of delays or denials.

Don’t wait any longer and risk jeopardizing your green card application. Contact us today, and we’ll be your trusted partner in achieving your American dream!