90 day rule

Depending on what type of visa you enter the United States with can impact what actions you should or shouldn’t take – especially when it comes to seeking permanent residency soon after arriving. For instance, those who are on single intent visas and rush into marriage with a U.S. citizen or permanent resident quickly upon entering the U.S. can raise serious red flags with USCIS and face penalties, especially if immigration officials suspect you misled them about your true initial intentions. The 90-day rule was a guideline utilized by USCIS up until 2021, which presumed that temporary visa holders who came to the U.S. on a single intent visa and then applied for a green card or marry a U.S. citizen/permanent resident within 90 days of entering, falsified their true original intentions. We advise our clients to wait for 90 days but USCIS has been applying it arbitrarily. Hence, while there is a rule it is not evenly implemented. In this guide we’ll explore what specific actions can trigger penalties with USCIS, ways to demonstrate your intent to return home and more.

Non-immigrant or “single intent” visas are granted to foreign nationals for the purpose of entering the United States, with the intention of leaving and returning to their home country after a period of time. Conversely, there are dual intent visas, like the L-1 or H-1B visa, which explicitly permit the visa holder to arrange a way to relocate to the U.S. on a permanent basis. The 90-day rule doesn’t apply to foreign nationals with dual intent visas but rather for those with single intent visas who mislead USCIS officials about their true intentions for coming to the U.S.

In essence, the rule, used by the State Department, suggests fraud in cases where a foreign national acts in a way inconsistent with the original intent of the visa within the first 90 days. That’s not to say that single intent visa holders can never change their mind once they come to the U.S. if they meet someone they would like to marry or apply for a green card, but the burden of proof falls on them to prove that their intentions were not misguided from the beginning. If your professional or personal conditions changed significantly while in the 90-day period it’s best to consult an immigration attorney before attempting to acquire permanent residence.

The 90-day rule replaced what was formerly known as the 30/60 day rule in 2017, in line with changes to the Foreign Affairs Manual. Specifically, it can cause issues for immigrants who apply for an adjustment of status or who change their status after coming into the U.S. on a nonimmigrant (temporary) visa. If you are on a visa-waiver program and are planning to adjust your status within 90 days of entering the U.S., discuss this with your immigration professional because it’s very likely that it will trigger the 90-day rule.

Acts that Can Trigger USCIS 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 employment that is not authorized
    • There are specific visas intended for employment – apply for one of these if your intent is to work lawfully in the United States.
  • Registering in a school without the necessary authorization or immigration status
  • Getting married to a permanent resident or citizen and creating a residence in the U.S.
  • Other activities which are subject to a change of status or adjustment of status, without having officially done so

Why is this rule in place? 

You may be wondering why it is such a big deal if a foreign national carries out one of the aforementioned acts. Well, when applying for a nonimmigrant visa, you must prove that you plan to return home when the trip is completed such as sufficient ties to your home country or a compelling reason to return. If you went through a visa interview from a consular officer they will have asked you about things like financial and employment ties to your home country like property you may own, bank accounts, etc. The burden of proof falls on you to prove you will not try to dupe them into staying permanently in the U.S. if they grant you a temporary visa.

Such visas include F, J, Q, TN, B, M and others. These each have specific short-term activities that are allowed to happen on them like education, leisure/tourism and some business but they are not intended for permanent stay in the United States. Imagine if that was the case and everyone on a tourist visa decided 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

When do your 90-days begin? You should look at your I-94 arrival/departure record to determine this. 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.

90Day Rule Immigration Frequently Asked Questions

What is a red flag for USCIS in terms of what a single-intent visa holder does?

As a single intent visa holder you can be accused of misrepresenting your intentions if you do any of the following:

  • Carrying out work not authorized
  • Attending a school or academic course that is not approved
  • Filing an adjustment of status application
  • Getting married to a U.S. citizen or green card holder.

You will not automatically be assumed to have misled immigration officials if you wait after 90 days to perform one of these actions however you can still be responsible for the consequences if they obtain evidence that you did engage in unauthorized behavior.

Is the 90-day rule still in effect?

In 2021, USCIS announced that they are not using the 90-day rule anymore but they are still examing the date the individual entered the U.S. and what they told officials was their intent for traveling to the U.S.

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. on a permanent basis.

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 misrepresent 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 more strict than its predecessor and it applies to applicants across the board.

How does 90-day visa work?

The 90-day visa is different than the 90-day rule. The K-1 visa is a fiance nonimmigrant visa that allows the foreign-born fiance to enter the United States for the purpose of marrying their spouse. They must get married within that 90-day window otherwise the foreign fiancee 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 fiance 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 (who 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 fiancee’s arrival into 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 (which the 90-day rule does not apply to) 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 to 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 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.[44]

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. Above all else 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.

How We Can Help

We understand that circumstances can often change when you enter a new country. If you think you will be impacted by the 90-day rule or have questions pertaining to the 90 day rule for immigration it’s very important you consult a qualified immigration attorney. The VisaNation lawyers have handled thousands of cases involving green cards, adjustments of status, single and dual intent visas. Contact us to schedule a consultation today!