In September 2017, a serious change was made to the Foreign Affairs Manual by the US Department of State. A new 90-day rule came into existence, replacing the 30/60-day rule. This new rule could have a profound effect on individuals interested in an adjustment of status.
The process you need to complete when applying for the lawful permanent resident status is called adjustment of status. The process is colloquially called applying for a Green Card, which will enable you to remain in the US without returning to your home country and applying for a visa again. A person’s eligibility for adjustment of status is determined by several things. Comprehensive information about the requirements and the procedure is available on the US Citizenship and Immigration Services website.
The category that an immigrant is applying under will determine the adjustment of status eligibility requirements. The specific conditions can be found by exploring the Green Card eligibility categories. Some of the common possibilities include Green Card application through family, via employment, as a refugee, as a victim of abuse and as a special immigrant.
What Is the 90-Day Rule?
According to 9 FAM 302.9, an alien who engages in conduct inconsistent with their nonimmigrant status within a 90-day period of entering the US may become inadmissible for the Green Card or even permanently barred from entering the US.
What does all this terminology mean? People who enter the US for the sole purpose of applying for the permanent residence could suffer the consequences of the 90-day rule.
Certain actions on behalf of an immigrant could trigger the 90-day rule. The most common ones include the following:
- Getting employed unlawfully
- Enrolling in an educational program without a change of status or the proper authorization
- Being a non-immigrant in a status that prohibits marriage to a US citizen
- Undertaking any other activity that will legally necessitate a change of status
The 90-day rule will be applied to determine whether a non-immigrant has violated the terms of their visa.
When Can You Lawfully Complete the Adjustment of Status Process?
Usually, visa applicants have to prove their non-immigrant intent during the interview. The goal can be accomplished by demonstrating the following:
- Have a residence in another country
- Have no immediate intentions of abandoning the residence
- Plan to leave the US upon the termination of your visa
Adjustment of status, however, can take place for certain visa holders. If an employer decides to sponsor the individual or if they fall in love and get married to a US citizen, the Green Card application process may be initiated.
USCIS will face the task of determining whether there was preconceived intent (for example, getting married for the sole purpose of staying in the US). Generally, getting a visa and using it to engage in activities that it wasn’t intended for will be considered visa fraud. If you enter the country on a B-2 visa for the sole purpose of getting married and staying in the US, you will be committing a visa violation.
This is where the 90-day rule applies. It’s unlikely for a person to fall in genuine love and get married within 90 days of entering the country. A violation of the visa status within this relatively short period of time is going to have profoundly negative consequences.
After the end of the 90-day period, there will be no presumption of misrepresentation. This, however, does not mean you will be entirely off the hook. If there is a reasonable belief that the individual misrepresented the purpose of the trip, Green Card denial will occur once again.
Misrepresentation Exemptions
Certain people are exempt from the terms and conditions that apply to others via the 90-day rule.
Immediate relatives of US citizens are typically exempt from the misrepresentation rule. Still, the first 90 days of a visit to the US are risky for a status adjustment. Anyone who enters the US with a non-immigrant visa or on a visa waiver program should talk to an experienced immigration attorney about the adjustment of their status.
The visa waiver program enables residents of certain countries to enter the US without a visa interview. The program’s terms and conditions are highlighted by the US Department of State – Bureau of Consular Affairs. Even when the visa waiver program applies, the terms and conditions for adjustment of status will still have to be met.
We can help you complete the adjustment of status process successfully after the first 90 days from the US entry have passed. As experienced Chicago immigration lawyer professionals, we suggest waiting for the rule to be fulfilled before moving forward. If you wait solely 30 or 60 days, chances are that you’ll have to deal with issues linked to potential misrepresentation.
FAQs
What Is the 90-Day Rule? According to 9 FAM 302.9, an alien who engages in conduct inconsistent with their nonimmigrant status within a 90-day period of entering the US may become inadmissible for the Green Card or even permanently barred from entering the US.
Does the 90-day rule still exist? ›
While USCIS officers are no longer required to follow the 90-day rule today, they can still use it as a guide to determine whether an applicant distort the reality. It is important to keep this in mind and avoid carrying out any activity that immigration officers consider suspicious.
Does USCIS enforce 90-day rule? ›
The Policy Manual that was changed in 2018 indicates that the 90-day rule is not binding on USCIS but it helps officers to evaluate cases and determine whether the green card applicant applying from within the U.S. misled government officers when granted a visa or admitted to the country.
Can an immigration lawyer speed up the process? ›
While an immigration attorney cannot per say “speed up” your case, the immigration attorney is knowledgeable in immigration law and will know the best strategy and options for your case. Undeniably, this avoids any unreasonable delay by anyone lacking specialized knowledge in this area of law.
How to get a green card faster than 90 days? ›
USCIS considers all requests for expedited processing on a case-by-case basis. USCIS may consider expediting your application under the following circ*mstances: Severe financial hardship, such as situations where you or your family members face imminent eviction, foreclosure, or loss of essential services.
How strict is the 90 day rule? ›
The 90-day period is determined by a rolling calendar system, which means that at any time of the year you must be able to go back to the previous 180 days and prove that you have spent less than 90 days in the EU/Schengen area.
Do I have to wait 90 days to adjust status? ›
In other words, staying more than 90 days on one stay, then leaving the country and returning, resets the “90-day clock.” To avoid breaking the 90-day rule, an applicant must wait 90 days since their most recent entry to the United States before marrying or seeking to adjust their status..
How to beat the 90 day rule? ›
There are some ways of getting around the 90 day rule but you will need a job and plenty of cash.
- Work visa. Non- EU citizens who want to stay in Spain for more than 90 days may apply for a work visa if they have found employment there. ...
- Non-lucrative visa. ...
- Golden visa. ...
- Digital nomad visa.
Misrepresentation Exemptions
Certain people are exempt from the terms and conditions that apply to others via the 90-day rule. Immediate relatives of US citizens are typically exempt from the misrepresentation rule. Still, the first 90 days of a visit to the US are risky for a status adjustment.
Will the 90 day rule change? ›
And the short answer is - nothing. The key thing to remember about EES is that it doesn't actually change any rules on immigration, visas etc. Therefore the 90-day rule continues as it is - but what EES does change is the enforcement of the rule.
First, an easy answer: an immigration lawyer cannot speed up the green card process beyond what's allowed by law or regulation. However, an experienced immigration attorney can do a lot to make sure your interests and rights are defended in your legal proceedings.
How much does it cost to hire an immigration lawyer in the US? ›
Generally, individuals can expect to pay between $1,500 and $5,000 or more for legal services. This range reflects the diverse nature of immigration cases, from straightforward applications to more complex legal challenges.
Can a lawyer expedite an USCIS case? ›
Attorneys and Accredited Representatives may send expedite requests to: HotlineFollowupI918I914.vsc@uscis.dhs.gov.
How do you calculate the 90 day rule? ›
The rule states that you can stay in the Schengen zone for up to 90 days within any rolling 180-day period. This means you need to track your travel dates and ensure that within any period of 180 days, you do not exceed 90 days of stay. Record of all your entries into and exits from the Schengen zone.
Can I travel while my adjustment of status is pending? ›
While pending, travel is possible but risky without proper documentation. Your lawyer can help you with this by exploring advance parole. Meanwhile, exceptions exist for certain Visa holders, such as those with H, L, or V status.
Who qualifies for adjustment of status? ›
If you are currently in the United States on a nonimmigrant visa, you may be able to stay and apply for adjustment of status. This will allow you to become a permanent resident and get a Green Card. Before you can apply for adjustment of status, you or someone else must file an immigration petition for you.
What is the U.S. government 90 day rule? ›
The 90-day rule states that if you are in the U.S. temporarily and try to apply for permanent status for any reason within 90 days, the government will presume you misrepresented the original intention of your visit.
Which countries are in the 90 day rule? ›
The 90/180-day rule applies only to the European countries within the Schengen area, which include the following:
- Austria.
- Belgium.
- Bulgaria.
- Croatia.
- Czech Republic.
- Denmark.
- Estonia.
- Finland.
Consequences of Overstaying
Overstaying your 90 days can lead to penalties such as fines, deportation, or even a ban on re-entry to the Schengen Area. Adhering to the 90-day rule is important to avoid these consequences.
