Adjustment of Status / Green Card Applications and The 90 Day Rule

For anyone interested in traveling to the United States, especially anyone coming on a tourist visa, it is very important to be aware of the “90-day rule” that applies to all visitors. Tourist visas are classified as “non-immigrant visas,” meaning that your intent for coming to the U.S. is to visit on a temporary basis and ultimately return to your home country, where you have close ties, such as a job, property, family, etc.

Under the 90-day rule, any non-immigrant visa holder who engages in conduct that is inconsistent with the temporary status of their visa, within 90 days of their arrival, is at risk of becoming inadmissible and thus ineligible to adjust status and obtain a green card and/or risk being permanently denied entry into the United States.

WHAT CONDUCT DOES THE 90-DAY RULE APPLY TO?

Upon lawful entry into the U.S. on a non-immigrant visa, the 90-day clock begins ticking immediately and USCIS will be concerned with anyone who came to the U.S. to specifically violate the terms of their non-immigrant visa. So, when it comes to the conduct that the 90-day rule applies to, visitors should be extremely cautious in doing any of the following within 90 days of their arrival:

Engaging in unauthorized employment
Enrolling in an unauthorized course of study (without a proper student visa)
Entering into a marriage with a U.S. citizen or LPR
Engaging in any activity that would require a change of status
Filing an adjustment of status application

WHAT HAPPENS IF YOU BREAK THE 90-DAY RULE?

Violating the 90-day rule will almost certainly cause USCIS to place a flag on your application. While a violation of the rule does not result in an outright denial of your application, you will face an uphill battle to prove that you did not misrepresent your original intentions when you applied for your non-immigrant visa. Of course, not all individuals who violate the 90-day rule, do so intentionally.

There are definitely circumstances that may arise, especially emergency situations, that justify a violation of the rule. However, it will be up to the beneficiary to prove that they did not misrepresent their non-immigrant intent, so providing ample evidence is highly recommended.

Ultimately, if the USCIS officer reviewing your case determines that you misrepresented your original non-immigrant intent, not only would you adjustment of status application be denied, but you could also be at risk of being denied entry into the U.S. in the future. Without an approved waiver petition, you could be permanently prevented from coming back to the U.S.

HOW DO YOU COUNT THE 90 DAYS?

As stated above, the 90-day rule clock begins the moment you arrive at an airport or border and are allowed to enter the U.S. There are two ways to confirm the start date of the 90-day rule clock: Check your passport for a visa stamp and look at the date the visa was issued; you can also check your I-94 Travel Record, which will show your travel history and recent entries into the U.S. Once you know your last entry date, you simply count 90 days from that date and ensure that you do not engage in any of the above conduct within that time period. For example, if you enter the U.S. on June 1, 2022, 90 days from that date would be August 30, 2022.

REPEATED ENTRIES

It is also important to note that every time you re-enter the U.S. the 90 day clock resets. So, for example, if you come to the U.S. stay for a month, go back to your home country and then come back to the U.S., the 90 day clock restarts on your latest entry.

When it comes to the 90-day rule, USCIS takes misrepresentation and violating the terms of your non-immigrant visa very seriously. So it is imperative that you comply with this rule; however, if you’re able to provide adequate evidence to prove that your violation was not intentional and justified, you might be able to overcome the presumption of misrepresentation.

If you have any questions about the 90-day rule and adjustment of status, please do not hesitate to give us a call at (212) 547-8857 or schedule a consultation online and we'd be happy to discuss these issues further and help you reach a resolution. Our experienced immigration attorneys are here to provide the advice you need.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.