What is the 90-day rule for Adjustment of Status purposes?
The “90-day rule” refers to a guideline used by U.S. Citizenship and Immigration Services (USCIS) to determine whether an individual who entered the United States on a nonimmigrant visa and subsequently applied for Adjustment of Status (Form I-485) has violated their nonimmigrant status or misrepresented their intentions. This rule helps USCIS identify cases where individuals may have entered the U.S. with the intention of filing for Adjustment of Status shortly after arrival.
Key points about the 90-day rule:
- Nonimmigrant Intent: Many nonimmigrant visas (such as tourist visas or student visas) require that the individual has a nonimmigrant intent, meaning they intend to temporarily stay in the U.S. for a specific purpose and then depart. Individuals with immigrant intent (intent to remain permanently in the U.S.) are generally not eligible for certain nonimmigrant visas.
- Adjustment of Status: If an individual enters the U.S. on a nonimmigrant visa and files for Adjustment of Status (Form I-485) to become a lawful permanent resident (green card holder) within 90 days of their entry, USCIS may consider it as evidence that the individual had an immigrant intent when they entered on a nonimmigrant visa.
- Presumption of Misrepresentation: The 90-day rule creates a presumption that an individual misrepresented their intentions if they engage in certain activities (such as filing for Adjustment of Status) within 90 days of entering the U.S. on a nonimmigrant visa.
- Consequences: If USCIS determines that an individual engaged in misrepresentation or violated their nonimmigrant status by filing for Adjustment of Status within 90 days of entry, their Adjustment of Status application may be denied, and they could be subject to other immigration consequences, such as a ban on re-entry to the U.S.
- Exceptions: There are certain exceptions to the 90-day rule. For example, the rule generally does not apply to individuals who filed for Adjustment of Status based on a marriage to a U.S. citizen. Additionally, the rule does not apply to individuals who entered the U.S. on a K-1 fiancé(e) visa.
- Factors Considered: USCIS considers a variety of factors beyond just the timing of filing, including the circumstances surrounding the application, the individual’s actions, and the intent behind those actions.
It’s important to understand that the 90-day rule is a guideline and not an official regulation. USCIS makes determinations on a case-by-case basis, considering various factors and circumstances. If you are considering filing for Adjustment of Status, especially within 90 days of entry on a nonimmigrant visa, it’s advisable to consult with an immigration attorney who can provide guidance based on your specific situation and help you navigate the immigration process effectively.
How does the 90-day rule impact the Adjustment of Status application?
The 90-day rule can impact the Adjustment of Status (Form I-485) application in cases where an individual entered the United States on a nonimmigrant visa and subsequently files for Adjustment of Status within 90 days of their entry: https://bwea.com/90-day-rule/
The rule is intended to help U.S. Citizenship and Immigration Services (USCIS) determine whether the individual had nonimmigrant intent at the time of entry and whether there was a potential misrepresentation of their intentions.
Here’s how the 90-day rule can impact the Adjustment of Status application:
- Presumption of Immigrant Intent: If an individual enters the U.S. on a nonimmigrant visa and files for Adjustment of Status within 90 days of their entry, USCIS may presume that the individual had immigrant intent at the time of entry. This means that they intended to immigrate to the U.S. permanently, which could be contrary to the intent required for many nonimmigrant visas.
- Misrepresentation Concerns: USCIS may be concerned that the individual misrepresented their intentions when applying for the nonimmigrant visa if they subsequently file for Adjustment of Status within 90 days. Misrepresentation can lead to visa denials, visa revocations, or other immigration consequences.
- Factors Considered: While the 90-day rule creates a presumption, USCIS considers multiple factors when assessing the Adjustment of Status application. These factors may include the timing of the filing, the individual’s actions, their employment or family circumstances, and the intent behind their decision to apply for Adjustment of Status.
- Exceptions: There are exceptions to the 90-day rule. For example, the rule generally does not apply to individuals who are filing for Adjustment of Status based on a marriage to a U.S. citizen. Also, certain categories such as the K-1 fiancé(e) visa are exempt from the rule.
- Impact on Approval: If USCIS determines that the individual engaged in misrepresentation or violated their nonimmigrant status by filing for Adjustment of Status within 90 days of entry, their Adjustment of Status application may be denied. Additionally, if the 90-day rule applies, USCIS may request additional evidence to establish the individual’s true intent.
- Consultation with an Attorney: If you are considering filing for Adjustment of Status within 90 days of entry on a nonimmigrant visa, it’s advisable to consult with an immigration attorney. An attorney can assess your specific circumstances, help you determine whether the 90-day rule applies to your situation, and guide you through the application process to minimize potential issues.
It’s important to note that the 90-day rule is not an official regulation but rather a guideline that USCIS uses to evaluate cases. Always refer to the most up-to-date guidance from USCIS or consult with an immigration attorney for accurate information related to your specific case.
What happens if I do not comply with the 90-day rule?
If you do not comply with the 90-day rule when filing for Adjustment of Status (Form I-485), there can be several potential consequences. The 90-day rule is used by U.S. Citizenship and Immigration Services (USCIS) to determine whether an individual who entered the United States on a nonimmigrant visa violated their nonimmigrant status or misrepresented their intentions. Here are some potential outcomes if you do not comply with the 90-day rule:
- Denial of Adjustment of Status: If USCIS determines that you filed for Adjustment of Status within 90 days of entry on a nonimmigrant visa and that you had immigrant intent at the time of entry, your Adjustment of Status application may be denied. USCIS may conclude that you misrepresented your intentions when obtaining the nonimmigrant visa and that you are not eligible for permanent residency through Adjustment of Status.
- Visa Revocation: If USCIS determines that you violated your nonimmigrant status by filing for Adjustment of Status within 90 days, they may also notify the U.S. Department of State. This could lead to the revocation of your nonimmigrant visa, making you ineligible to enter or re-enter the U.S. on that visa.
- Inadmissibility: Engaging in misrepresentation or violating your nonimmigrant status could lead to a finding of inadmissibility to the United States. This could impact your ability to obtain future visas or immigration benefits.
- Potential Bar on Re-entry: Depending on the circumstances and the determination made by USCIS, you could potentially face a bar on re-entry to the United States. This could be a temporary bar or even a permanent bar if you are found to have engaged in fraud or willful misrepresentation.
- Legal Consequences: Misrepresentation or failure to comply with immigration rules can have legal consequences beyond the immigration process, including potential civil and criminal penalties.
It’s important to remember that every case is unique, and the specific consequences can vary based on the circumstances. If you are considering filing for Adjustment of Status within 90 days of entry on a nonimmigrant visa, it’s advisable to consult with an experienced immigration attorney. An attorney can provide guidance on whether the 90-day rule applies to your situation, help you understand potential risks, and assist you in navigating the immigration process to avoid or mitigate adverse outcomes.
