The 90 Day Rule

As of September 1, 2017, the U.S. Department of State replaced the 30/60 Day Rule with the 90 Day Rule which establishes a presumption of a willful misrepresentation in the event that an alien takes any action within 90 days of entry that is inconsistent with the terms of his or her nonimmigrant status on admission.

For example, if a nonimmigrant is admitted as a B1/B2 tourist and then, within 90 days of admission in that status files an I-485 application for adjustment of status, it may be presumed that the nonimmigrant misrepresented his or her intention at the time of the original admission (ie. by representing that he/she was entering as a tourist but really intended to adjust status). The 90 Day Rule may also be applied to nonimmigrants who attempt to change status after entry, such as in the case where he or she is initially admitted as a B1/B2 tourist and then, within 90 days of entry, files an application to change to F-1 student status.

In addition to filing applications and petitions that are inconsistent with the original terms of admission, the 90 Day Rule may also be triggered by certain conduct, such as:

• working without authorization;
• enrolling in school when academic study is not authorized by one’s nonimmigrant status;
• marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S. when one is in B or F status; and
• undertaking any other activity for which a change of status or adjustment of status would normally be required.

Moreover, even if action is taken AFTER the expiration of the 90 day period, one should be prepared to explain and demonstrate that there was an actual change in circumstances or plans which led to the decision to take the inconsistent action (even after the 90 days), rather than simply waiting out the 90 day period and filing on day 91, particularly since the new Trump Administration’s aggressive enforcement of U.S. Immigration law is taking on new and unknown dimensions and it remains to be seen just exactly how this rule will be implemented and applied to cases in the future.

It is important to note that the 90 Day Rule currently only applies to applicants for nonimmigrant visas (ie. overseas applicants who intend to travel to the U.S. on a temporary basis) and NOT to applicants for adjustment of status. Regardless, ALL applicants for U.S. immigration benefits would be well advised to assume that the 90 Day Rule will be applied by USCIS to all applications for immigrant (adjustment of status) and non-immigrant visa applications in the near future.

Special Rule for Immediate Relatives of U.S. Citizens.

Note, however, that under the 30/60 day Rule, Immediate Relatives of U.S. Citizens who apply for adjustment of status within 60 days of entry are treated differently under the law. Immediate Relatives are defined as children (under 18), parents, or spouses of United States Citizens. In short, preconceived intent cannot be presumed if the applicant/beneficiary is the child, parent or spouse of a U.S. Citizen AND it cannot be the basis for the denial of an application for Adjustment of Status IF it is the only adverse factor. This rule comes from several cases decided by the U.S. Board of Immigration Appeals, including Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), and Matter of Battista, 19 I&N Dec. 484 (BIA 1987).

It is important to understand that the holdings of these cases do not mean that the 30/60 Day Rule could not be applied to immediate relatives, but instead, that it cannot be the only reason that USCIS denies the application, assuming that everything else checks out and the foreign national is otherwise eligible to adjust status. But keep in mind that USCIS has many resources at their disposal and that they can and will investigate cases where there is a suspicion of wrongdoing or evidence that the foreign national actually had preconceived intent to immigrate at the time of entry. If USCIS cannot find actual proof of the preconceived intent, all they need to do is find one good reason to deny the application, in the exercise of discretion, and this can form the basis for a valid denial under the law. Even though USCIS may have a difficult time proving that an Immediate Relative actually had immigrant intent, applicants should give serious consideration to simply delaying the filing of an application for adjustment of status until 90 days after the date of entry in order to avoid any potential issues with the application of these rules in the future.

Given this new rule, nonimmigrants would be well advised to consult with South Florida Immigration Lawyer Sean D. Hummel before taking any action or requesting any changes to their status which would be inconsistent with the terms of their admission.

If you have any questions about whether you are subject to the 90 Day Rule or how the 90 Day Rule can impact your case, call Immigration Lawyer Sean D. Hummel to set up a consultation today (954) 385-3111, or email: sean@hummelaw.com

Special Note. The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented in this blog to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced U.S. Immigration Lawyer.