New 90-Day Rule Affecting Adjustment of Status For Spouses With a Nonimmigrant Visa

New 90-Day Rule Affecting Adjustment of Status (Green Cards) for Spouses of U.S. Citizens Who Enter The U.S. With a Nonimmigrant Visa

Frequently Asked Questions

• What has changed with the recent update in the Foreign Affairs Manual?
• Which are the Differences between the 30-60-Day Rule and the 90-Day Rule?
• Is the 30-60-Day Rule still valid?
• Which Scenarios May Trigger the Application of the 90 Day-Rule?
• What do I Need to Prepare for the New 90-Day Rule Affecting Adjustment of Status?

What has changed with the recent update in the Foreign Affairs Manual?

On September 1, 2017, The Department of State (DOS) updated the Foreign Affairs Manual (FAM) changing the 30/60-Day Rule to the 90-Day Rule. Even though this is a (DOS) rule, USCIS may still rely on it for determining visa fraud and immigrant intent.

This change will directly affect spouses of U.S. citizens who entered the country with a nonimmigrant visa. The typical scenario arises when a person enters the U.S. with a tourist visa, marries a U.S. citizen, remains in the United States past the expiration date on the I-94 Form and files for DACA. The issue is that a nonimmigrant visa, such as a tourist visa, only allows the recipient to enter the country for conduct consistent with that temporary status. Therefore, if a nonimmigrant enters the United States with the intent to permanently remain, they are misrepresenting their intent at the port of entry. Entering the U.S. by fraud or willful misrepresentation makes a nonimmigrant inadmissible for DACA. Inconsistent conduct within a certain amount of time after admission had been addressed with the 30/60-Day Rule and it has now been replaced with the 90-Day Rule.
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Which are the Differences between the 30-60-Day Rule and the 90-Day Rule?

Prior to the implementation of the 90-Day Rule, an officer adjudicating an adjustment of status petition for the spouse of a U.S. citizen, could apply the 30/60-Day Rule. This rule allowed a presumption of misrepresentation if the applicant engaged in inconsistent conduct within the first 30 days of admission. A nonimmigrant who engaged in inconsistent conduct after 30 days but within 60 days of admission, would be allowed to present countervailing evidence of misrepresentation. Finally, if the alien engaged in inconsistent conduct after 60 days of admission, the DOS would not consider that conduct alone to constitute fraud.
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Is the 30-60-Day Rule still valid?

The 90-Day Rule, has now replaced the 30/60-Day Rule. The new rule creates a presumption of willful misrepresentation if an alien engages in conduct inconsistent with his or her nonimmigrant status within the first 90 days of admission. For purposes of applying the 90-Day Rule, conduct that is inconsistent with nonimmigrant status includes but is not limited to:

• Engaging in employment without authorization;
• Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (such as a tourist visa);
• A nonimmigrant in B or F status prohibiting immigrant intent, marrying a U.S. citizen or lawful permanent resident and taking up residency in the U.S.;
• Undertaking any activity for which a change of status or adjustment of status would be required, without the benefit of such a change or adjustment.

If an alien engages in inconsistent conduct more than 90 days after being admitted, there is no presumption of willful misrepresentation. However, if the officer has “reason to believe” that there was a misrepresentation, he can request a finding of misrepresentation. A finding of misrepresentation would make an applicant inadmissible for adjustment of status. To reach a conclusion that there was a misrepresentation, the officer must have direct or circumstantial evidence to meet the “reason to believe” standard which requires more than mere suspicion but less than a preponderance of the evidence.
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Which Scenarios May Trigger the Application of the 90 Day-Rule?

While a nonimmigrant may have entered the country to engage in conduct consistent with his or her visa, it is conceivable that his or her intent may change once here.

Consider this example.

Teresa, a Mexican citizen, enters the country on a tourist visa to visit her U.S. citizen sister who is giving birth to her first child. Teresa is given 90 days to depart the U.S. During those 90 days, she spends time with her newborn niece but also unexpectedly reconnects with her childhood sweetheart, Jose. Jose is now a U.S. citizen and used to reside in Mexico, in the same town as Teresa before he immigrated to the U.S.

Because Teresa’s U.S. citizen sister is busy with her newborn, Jose offers to take Teresa sightseeing. Their childhood love is rekindled and they spend almost every day together. Two days before Teresa has to return to Mexico, Jose realizes that he cannot be without her and asks her to marry him; Teresa and Jose get married the next day and file for Teresa’s adjustment of status shortly thereafter.

Because Teresa engaged in conduct inconsistent with her nonimmigrant visa within 90 days of admission—she married a U.S. citizen—it is likely that the 90-Day Rule will be applied. In order to overcome the presumption that Teresa willfully misrepresented her intentions to engage in only status compliant activity during her visit, she must show that her intent at entry was to visit her sister and return to Mexico within 90 days. Some of the things we can use to show her consistent intent include but are not limited to:

• Proof of her niece’s birth.
• Having purchased return flights.
• Having requested time to travel from employer.
• Having continued to maintain a residence in her home country during her U.S. visit.
• Proof that her relationship to her U.S. citizen spouse began after her entry, such as text messages, emails, letters, social media messages and posts, etc.

Even with this evidence USCIS could conclude there was misrepresentation

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What do I Need to Prepare for the New 90-Day Rule Affecting Adjustment of Status?

In addition to preparing evidence of consistent intent at entry, couples should be well prepared for their DACA interview. The interview will be the most crucial part in establishing consistent intent at entry. An experienced immigration attorney can guide you through the process, file your case, prepare you and your spouse for the interview and attend the interview with you.
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an immigration attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.