If you lie about your plans when coming to the U.S., you can face serious penalties, including visa denial and heightened scrutiny of future applications. The type of visa you hold determines what actions you can or cannot take, which is important if you plan to apply for permanent residency after arriving in the United States. For example, if you enter the U.S. on a B2 tourist visa and immediately marry upon arrival, this is considered “willful misrepresentation” and likely will result in the denial of your permanent residency application.
That’s why attorneys generally recommend using the“90-day rule” as a general guideline of how long to wait before applying for a green card after having traveled to the United States on a non-immigrant visa. In this guide, we’ll explore the 90 day rule in the context of marriage and employment, including whether it is still in effect, how it impacts the adjustment of status timeline, what can trigger penalties with USCIS, and ways to demonstrate your immigrant intent.
What is The 90-day Rule For Immigration?
The Department of State policy “90-day rule” suggests that if a person entered the U.S. on a temporary visa and, within 90 days, did something that conflicted with the purpose of their visa, such as marrying a U.S. citizen or working without authorization, it could be assumed they misrepresented their true intentions when they applied for the visa.
Excerpt from the Official DOS Policy (9 FAM 302.9) on Inconsistent Conduct Within 90 Days of Admission to the United States:
“To establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, you may consider whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States)”
Historically, USCIS referenced the 90-day rule in its policy manual, Volume 8, Part J, Chapter 3 guideline in 2018, but officially removed it in 2021 and replaced it with language that emphasizes evaluating the totality of circumstances rather than relying on a specific time-based presumption. In other words, time is just one of the factors that are considered.
Nonetheless, time is still a critical factor, and the Department of State still uses the rule. Thus, VisaNation attorneys still recommend abiding by the 90-day rule as a best practice to avoid all risks.
A key takeaway is that single intent visa holders can change their minds once they come to the U.S. However, the burden of proof falls on them to prove that their intentions were not misguided from the beginning.
How Does the 90-Day Rule Impact Adjustment of Status?
The 90-day rule applies to those planning on filing adjustment of status applications to become permanent residents using Form I-485. Before applying for the adjustment, lawyers advise waiting the full 90 days before applying. Additionally, based on guidance from the Department of State, applicants shouldn’t take concrete steps to establish residency, such as applying for a driver’s license or signing a lease.
The 90-day rule also applies to an immediate relative, such as a spouse or child. Even if they are an immediate relative, they can still misrepresent their intent and have their green card petition derailed if USCIS comes to this conclusion.
What is Immigration Intent?
“Single intent” visas are granted to foreign nationals for the purpose of entering the United States temporarily. Conversely, there are dual intent visas, like the L-1 or H-1B visa, which explicitly permit the visa holder to adjust their status to stay in the U.S. permanently should the opportunity arise.
The 90-day rule doesn’t apply to foreign nationals with dual intent visas, but rather to those with single intent visas.
In essence, immigration intent is having a plan to establish permanent residency once arriving in the United States. For many temporary visas, having immigrant intent will disqualify you from the visa, as a core tenet of temporary visas like the B2 is the requirement that you will return home.
If your professional or personal conditions changed significantly during the 90 days, it’s best to consult an immigration attorney to discuss further.
Red Flag Actions That Trigger the 90-Day Rule
The following acts can set off red flags with immigration officials if done within 90 days of entering the United States:
- Seeking or engaging in employment that is not authorized
- There are specific visas intended for employment, and you should apply for a work visa if you intend to work lawfully in the U.S.
- Enrolling in a school if it’s not authorized by the person’s visa status
- Getting married to a permanent resident or citizen in the U.S. and taking steps to establish residence, such as:
- Signing a lease or obtaining a mortgage
- Getting bills in their name
- Obtaining a local driver’s license
- Undertaking any other activity that would normally require a change of status or adjustment of status, without having that change approved.
Remember: CBP officers can look through your phone which includes, text messages, photos, phone logs, and social media.
Why is this Rule in Place?
The 90-day rule is a guideline established to help government agents in the Department of State determine whether a visa holder’s actions once in the United States should be considered willful misrepresentation. For context, when applying for some temporary visas, you must prove that you plan to return home once the trip is completed by providing documentation that proves sufficient ties to your home country or a compelling reason to return, such as ongoing employment or a family you are responsible for caring for.
If you went through a visa interview with a consular officer, they verify those ties to your home country. The burden of proof falls on you to prove that you do not have the intention to move permanently in the U.S. if they grant you a temporary visa.
Such visas include F, J, Q, TN, B, M, and others. Each has specific short-term activities, like education, leisure/tourism, and some business, but they are not intended for permanent stay in the United States. If that were the case, everyone on a tourist visa would decide to permanently reside in the country. Not only would that create a bigger problem for immigration officials, but it wouldn’t encourage the right individuals from applying for the proper visa category.
Determining Your Entry Date
You should look at your I-94 arrival/departure record to determine your entry date. For all intents and purposes, the 90-day period begins at your most recent entry into the country, so if you happen to have more than one I-94 record, go back to the most recent.
Frequently Asked Questions
Is the 90-day rule still in effect?
The 90 day rule is a guideline, not a law.
If, as a single-intent visa holder, you trigger the 90-day rule by getting married or filing for a green card within that window, and an immigration officer determines, upon reviewing your case, that you misrepresented your original intent, then your green card application will likely be denied, and furthermore, you face having your original visa revoked.
Who is exempt from the 90-day rule?
Those who have a dual intent visa, such as the L-1 or H-1B visa, are exempt from this rule because the visa explicitly permits the visa holder to arrange a way to relocate to the U.S. permanently.
What is the 30-60-90 day rule?
The 30/60 day rule was replaced by the 90-day rule, in line with changes to the Foreign Affairs Manual. The 30/60 day rule (which was used before September 2017) assumed that if an adjustment of status application was filed within 30 days of entering the U.S., then the applicant misrepresented their original intent and they would subsequently be denied, and those filed 30-60 days after coming to the U.S. were flagged as suspicious but not denied automatically. Those filed after the 60-day window were not flagged. In contrast, the 90-day rule is stricter than its predecessor, and it applies to applicants across the board.
How does a 90-day visa work?
The 90-day visa is different than the 90-day rule. The K-1 visa is a fiancé non-immigrant visa that allows the foreign-born fiancé to enter the United States for the purpose of marrying their spouse. They must get married within that 90-day window otherwise, the foreign fiancé will need to return to their home country. If you're interested in obtaining a K-1 visa, visit this page.
What are the 90-day fiancé visa rules?
There are a number of requirements, which are laid out in-depth on our K1 Fiance Visa page, but as a general overview, the foreign partner must be sponsored by the U.S. partner (whom they have met in person within the last two years) before filing Form I-129F. You can prove you have seen your partner in the past two years by showing photos of you together, airline receipts with travel dates, etc. Upon the fiancé's arrival in the country, the two must get legally married within 90 days.
Who does the 90 day rule apply to?
The 90-day rule applies to those with single intent visas B-1/B-2, TN, E-3, etc. Any single intent visa will require you to prove sufficient ties to your home country. Examples of dual intent visas (for which the 90-day rule does not apply) are H-1B visas and L-1 visas. In either case, if you get married on a temporary visa within the 90 days, the government is very likely to consider it fraud.
How to prove non-immigrant intent?
There are a number of ways to prove non-immigrant intent, including showing that you own a property in your home country, a letter from your employer about your position and responsibilities, bank statements/monetary bonds showing you have accounts in your home country or a round-trip ticket to and from the U.S.
Can you contest the 90 day rule?
You and your attorney should work alongside each other to build a case strong enough to contest it. It is possible to persuade immigration officials that it was legitimate if your personal or professional situation changes significantly within the first three months of entering the U.S.
What is the difference between fraud and willful misrepresentation?
According to USCIS, fraud encompasses two additional elements in addition to willful misrepresentation. These include:
- The willful misrepresentation was made with the intent to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer); and
- The U.S. government official believed and acted upon the willful misrepresentation by granting the immigration benefit.
Depending on whether the person successfully procured the immigration benefit, one or both elements are needed to establish inadmissibility based on fraud.
What's the best way to protect myself from the 90 day rule?
Keep records detailing your travel plans and circumstances. Do not lie to immigration officials. Your immigration lawyer will best be able to guide you on what precautions to take upon entering the United States.