Explaining the 90-Day Rule
- By Fileright
- Last Updated:
Introduction
Regardless of origin, the US has remained a preferred destination for all immigrants. It offers unparalleled education opportunities, especially in Ivy League institutions, a strong and robust economy offering high-paying opportunities, and a diverse culture, which are just some reasons why immigrants consider the US a land of opportunity.
The US offers hundreds of thousands of immigrant and non-immigrant visas every year. If eligible, non-immigrant visa holders can change their status and apply for permanent residence. However, this is where the 90-day rule comes in.
If you have arrived in the US on a non-immigrant visa and, within 90 days of your arrival, apply for a green card or marry a US Citizen or a lawful permanent resident (LPR), the USCIS may presume that you misrepresented your original intention. This can lead to your visa being revoked and you being deported from the US.
If you are planning to enter the US on a non-immigrant visa or you have already entered the US and plan to marry a US Citizen or an LPR, then you should understand what the 90-day rule is and whether it applies to you or not.
What Is The 90-Day Rule?
The 90-day rule is a guideline by which the USCIS determines whether you misled immigration officials or misrepresented your interest when you entered the US on a non-immigrant visa. This rule typically comes into effect when a person applies for a green card from within the US.
What Is Visa Intent?
An important factor used to determine if the 90-day rule has been broken is the visa intent. The US issues many different types of non-immigrant visas for purposes ranging from study to employment to business to pleasure.
Some of these non-immigrant visas, such as the H-1B, L-1, P, K, and V visas, can be used by you to permanently relocate to the US and file for lawful permanent residence or a green card. These visas are known as “dual intent” visas. So, if you have a dual-intent visa, you don’t have to worry about the 90-day rule.
However, many non-immigrant visas are temporary and have a “single intent” to visit or temporarily stay in the US. The purpose of granting this visa is to allow you to enter the US. While applying for a non-immigrant visa, you would have to provide evidence and declare to the USCIS that you are not planning to immigrate or permanently relocate to the US. If you have a tourist visa, a study visa, or a business visa, chances are your visa is single intent.
To help you understand your position better, here’s a list of the commonly used non-immigrant visas that are single intent:
- B-1/B-2- Business or Tourism
- E-2- Treaty Investor
- F-1- Student
- J-1- Exchange Visitor
- M-1- Student
- Q-1- International Cultural Exchangege
- TN- NAFTA Professionals
Can A Single Intent Visa Holder Apply For A Green Card?
Can I still apply for a green card if I have a single-intent visa?
Having a single-intent visa doesn’t mean you cannot apply for a green card. The USCIS allows you to change your mind once you enter the US. You are free to marry a US citizen or a lawful permanent resident and apply for a green card. However, you have to be more careful.
The USCIS sees your original intention of visiting the US. If you came to the US intending to leave and later changed your mind about leaving, there isn’t an issue. So, how does the USCIS determine if you initially intended to stay or leave the US?
For this, the USCIS uses the 90-day rule. If you came on a single-intent visa and applied for a green card within 90 days of your arrival, the USCIS automatically presumes that you misrepresented your intentions to the immigration officer.
While you can still make a case that your intention was genuine and you wanted to leave the US, however, due to unexpected changes in your personal or professional life during the 90-day period, you now want to stay, it can be extremely difficult to prove this. Overall, it’s best to just avoid doing any action that can jeopardize your non-immigrant visa during the 90-day period.
What Is The 60/30 Day Rule?
Before September 2017, the USCIS used the 30/60-day rule instead of the 90-day rule. According to the 30/60 day rule, if you filed for adjustment of status:
- Within 30 days of your arrival, the USCIS presumed that you misrepresented your intention and usually rejected your application
- Between 30 and 60 days of your arrival, your application was seen as suspicious but not usually denied.
- Your application was usually not seen as suspicious after 60 days of your arrival, and the USCIS did not automatically presume that you misrepresented your intention.
In September 2017, the USCIS changed its policy and introduced the 90-day rule. This rule will apply if you are applying for adjustment of status with a single intent visa in 2025.
How Is The 90-Day Rule Different?
The 90-day rule is much stricter compared to the 30/60-day rule. If you apply for an immigrant visa or file an application for adjustment of status within 90 days of your arrival, the USCIS automatically presumes that you misrepresented your intentions. It is now up to you to prove that your intentions were genuine.
Many non-immigrants applying under the visa waiver program have issues adjusting their immigration status without triggering the 90-day rule.
Who Does the 90-Day Rule Apply To?
The 90-day rule applies to a person coming to the US on a single intent visa, for a temporary stay, who does any of the following within 90 days of their arrival in the US:
- Apply for adjustment of status
- Engage in unauthorized employment
- Enroll in a course of study without proper authorization
- Marry a US Citizen or LPR
If you do any of the above, the USCIS may presume you misrepresented your intentions. Even if you apply for a green card through consular processing at the National Visa Center, the USCIS can still presume that you misrepresented your interest.
At the time of your green card interview, if you say that you came to the US intending to stay, even if you filed for an immigrant visa after the 90-day period, the USCIS officer can have reason to doubt you and may deny your application.
How To Count The 90-Day Period?
It’s very easy to count if you have spent 90 days in the US. All you need to do is look at the date of your arrival in the US by seeing your Form I-94 Arrival/Departure Record, and add 90 days to it. So if you arrived in the US on March 01, 2025, 90 days from that would be May 30, 2025. So if you apply for a green card after that date, chances are you wouldn’t have any problem.
It’s also important to remember that the 90-day rule applies to your most recent entry to the US. If you had a dual-intent visa and stayed in the US for more than 90 days, and then you left the US and returned on a later date on a single-intent visa, your 90-day clock has been reset. Now, you have to wait another 90 days, or you have to enter the US on a dual-intent visa. Otherwise, the 90-day rule will apply.
How Can I Prove Non-Immigrant Intent?
Generally, the application of the 90-day rule and the final decision on whether you misrepresented your intention when you first arrived in the US are left to the judgment of the USCIS officer who evaluates your green card application.
With supporting documents and strong evidence, you can prove that your original intention was non-immigration and that you planned to return to your home country after a temporary stay in the US. However, during your stay, within the first 90 days of your arrival, your situation changed due to circumstances beyond your control, which you couldn’t have foreseen, making you apply for an immigrant visa.
Typically, immediate relatives of US citizens are exempt from the misrepresentation rule. You can prove non-immigrant intent:
- Strong ties: You can attach documents to your I-130 to show strong ties to your home country
- Original plans of travel: Attach original hotel bookings or plane tickets booked in advance, showing that you planned to leave after your visa expired
- Natural Development: If you apply for marriage-based immigration, show that your relationship developed naturally after entering the US.
- Circumstances beyond your Control: An example of this can be if you came on a non-immigrant visa to visit a relative, and their health takes a turn for the worse, forcing you to apply for an immigrant visa to stay and take care of them.
What Will Happen If I Break The 90-Day Rule?
The 90-day rule acts more as a guideline than a fixed rule for USCIS officers evaluating your immigrant visa applications.
As a single-intent visa holder, even if you marry someone and file for adjustment of status within 90 days of entering the US, you can still provide evidence to counter the presumption of the USCIS officer and prove that your original intention was to temporarily stay in and then leave the US.
This doesn’t mean you shouldn’t strictly comply with the 90-day rule. If you are unable to prove that your intentions were genuine, the USCIS officer can presume that you misrepresented your intentions. There is a good chance that your green card application may be denied. The USCIS can also revoke your existing non-immigrant visa.
Typically, if a person’s non-immigrant visa is revoked, they are deported from the US. Later, they can, in some cases, face additional challenges in re-entering the US and applying for any immigration benefit.
Conclusion
The 90-day rule is an important guideline to remember if you have arrived in the US on a non-immigrant visa, especially if that visa is single-intent. By understanding when the 90-day rule is applicable, you can prevent complications in your immigration process and safeguard your visa.
If you have done anything that has triggered this rule, it’s best to consult an experienced immigration attorney to help you understand your options and assist you in gathering evidence and supporting documents to prove your non-immigration intent.
How FileRight Can Help?
FileRight’s expert US immigration attorney can assist in handling any visa complications that you face during your immigration journey. With decades of experience in immigration law, our attorneys have a proven track record of helping hundreds of immigrants in similar situations. With FileRight’s online error-free application software, you can file your paperwork in an easy-to-use online format, minimizing the chances of mistakes and delays.
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