USCIS 90-Day Rule

USCIS applied the 90-day rule to verify visa compliance and foreigners’ intent to change their status after entering the U. S.

However, this rule belongs to the Department of State (DOS), so in 2021, USCIS removed it from its Policy Manual. As a result, immigration officials are no longer required to follow it, but it remains a useful guide when assessing visa applications.

At Curbelo Law we understand how complex immigration procedures are. Therefore, we advise aliens to communicate with us beforehand, because with our help, the chances of a successful result will increase. 

The Legacy Of The USCIS 90-Day Rule In 2024

The USCIS 90-day rule concerned the fact that a nonimmigrant visa holder provided false information when entering the United States or applying for a visa. This presumption arose when the holders participated in activities not permitted by their status within the first 90 days of entering the country.

Under the 90-day rule, if immigrants violated their nonimmigrant status, they received a penalty of:

1. Inadmissibility to get the Green Card, or 
2. Permanent ban on entry into the country.

This rule automatically presumed that immigrants had lied to authorities about their intentions in the country.

While USCIS officers are no longer required to follow the 90-day rule today, they can still use it as a guide to determine whether an applicant distort the reality. 

It is important to keep this in mind and avoid carrying out any activity that immigration officers consider suspicious. In fact, the U. S. government takes alleged hoaxes very seriously.

Facts That Triggered The USCIS 90-Day Rule

Some actions that triggered the 90-day rule included:

• Getting a job in the United States being illegal,
• Being a nonimmigrant in a status that prohibits lawful permanent residence in the U. S. For example:
  • B-1 business visitor visa, 
  • F-1 student visa, or 
  • TN visa for Mexicans and Canadians, 
• Enrolling in an educational program without change of status or authorization, 
• Participating in any activity that legally required a change of status,
• Marrying a U. S. citizen or lawful permanent resident, and
• Submitting a Green Card application through Form I-485, Application to Register Permanent Residence or Adjust Status. 

Example Of A 90-Day Rule Activation

A foreign national entered the U. S. on a B-2 temporary tourist visa and married an American citizen, then applied for a Green Card within the first 90 days.

This action could be perceived by USCIS as an intentional misrepresentation and you may be barred from returning to the United States. 

All this is because the B-2 visa is intended for tourism. If you wanted to get married, the immigrant had to meet the requirements to obtain the K-1 fiancé visa.

Is The USCIS 90-Day Rule Still Active?

No. In 2021, USCIS announced that it would stop enforcing the 90-day rule, but would still use it as a guide, especially to consider:

1. Alien’s date of entry to the U. S, and 
2. Declarations made by aliens about their intention to travel.

Who Was Exempt From The USCIS 90-Day Rule?

Individuals with dual-intent visas were exempt from this rule, as such visas allow the holder to plan a permanent relocation to the U. S. 

Why Was The USCIS 90-Day Rule Used?

This rule was used when USCIS presumed that a foreign national had misrepresented information within the first 90 days when applying for a visa or admission to the U. S.

This is because foreigners with temporary visas must submit documents that demonstrate their intention to return to their country of origin at the end of their trip. 

To do this, in the consular interview, all the immigrant’s financial ties in their country of origin will be evaluated. For example:

• If you have a residence in your country,
• You do not plan to soon abandon your residence abroad, and
• You intend to leave the U. S.

If the consular officer is satisfied with the answers, the visa will likely be granted.

Dual Intent Visas 

Certain U. S. visas allow dual intent. For example, H-1B visas and L-1B visas, which means the holder can use the visa while planning to permanently move to the United States. 

While dual-intent visa holders did not need to worry about the 90-day rule, immigrants with single-intention visas did. This also applied to immigrants under the Visa Waiver Program (ESTA). 

In essence, single intent visa holders could change their purpose by:

1. Arriving in the USA, 
2. Getting married, or
3. Applying for a Green Card. 

Although they would have initially been granted a visa for temporary stays based on their status, a change of intention raises concerns among the authorities.

How Can The US Government Know If An Immigrant Intended To Leave Or Not?

Generally, holders with single intent visas are allowed to modify their plans once they are in the U. S. For example, get married, as long as they actually arrived in the country with the intention of leaving. 

However, this can be a challenge for the U. S. government, since it is not possible to directly know whether an immigrant has that intention or not.

To address this, the 90-day rule automatically assumes that foreigners who marry or apply for a Green Card in the first 90 days have lied about their original intentions.

What Should Be Kept In Mind About The USCIS 90-Day Rule?

When this rule was in effect, the applicant had to determine if more than 90 days had passed since their arrival in the country. This could be done:

• Taking the most recent entry date from Form I-94: Arrival/Departure Record, and 
• Adding 90 days. 

For example, if the entry date on the I-94 form was December 1, 2023, 90 days later would be February 29, 2024. So, if the immigrants did not marry or file a Green Card application before that date, they won’t have problems with such a rule.

How Did Repeated Entries Affect?

This rule only applied to the most recent entry. Therefore, if a foreigner stayed more than 90 days during a stay, left the country and then returned, “the 90-day clock” was reset.

Therefore, you had to wait 90 days to avoid violating this rule before applying for adjustment of status or marrying a citizen or lawful permanent resident. 

How Were The 90 Days Of The USCIS Rule Counted?

Immigrants had to keep a record of the days they had been in the United States. To do this, they had to check the most recent entry date on their I-94 permit and add 90 days to it.

It should be noted that the 90-day rule began from the most recent date of the I-94 permit. In other words, if an immigrant left and returned to the U. S, the 90-day period would reset to reflect the most recent date.

Was It Possible To Challenge The USCIS 90-Day Rule?

In general, it was possible, and even more so with the help of a good lawyer. For example, our New Jersey immigration attorneys. However, a strong case was needed to challenge this rule. 

In fact, it was possible to demonstrate to immigration officials that their cases were legitimate if their scenario had changed during the first few months.

How Was The USCIS 90-Day Rule Different From The 30/60-Day Rule?

Before September 2017, USCIS used the 30/60 day rule to evaluate an immigrant’s intent. This means that:

• If an immigrant filed an adjustment of status application in the first 30 days after entering the U.S., it was interpreted as misrepresentation.
• Applications between 30 and 60 days after entry were considered suspicious but not necessarily disqualifying. Those submitted more than 60 days after admission generally did not cause problems.
• In September 2017, USCIS replaced the 30/60-day rule with the 90-day rule, which applied more broadly to all applicants. 

The 90-day rule was more rigorous, as applicants were presumed to have misrepresented their intentions within the first 90 days of entering the country.

What Happened To The USCIS 90-Day Rule If An Immigrant’s Plans Changed After Entering The United States? 

Immigrants could modify their immigration plans only in case of unforeseen circumstances. Furthermore, USCIS did not reproach them for such changes if they initially intended to leave the country.

Despite this, it was preferable to avoid violating this rule. If they did so, the immigrants would be responsible for demonstrating the change from their original intentions, especially if it involved a situation:

• Staff, 
• Family member, or 
• Professional.

How To Demonstrate The Intention To Remain With “Non-Immigrant” Status?

Although the rule no longer applies today, immigrants should be prepared to respond to USCIS if their original intentions have changed. 

To do this, they must demonstrate that they did not misrepresent their initial intentions. This can be done by submitting evidence of your intention to return to your home country. For example, continued employment or some travel bookings.

If the situation changed due to factors outside your control, such as a medical emergency, it may be simpler to demonstrate your intent. In this case, you could present the situation as evidence that your intentions changed only after arriving in the country.

What Is The Difference Between Intentional Misrepresentation And Fraud?

According to USCIS, fraud involves two additional elements:

1. The intentional misrepresentation is carried out with the intent to mislead a U. S. government official in making decisions about the application, and
2. The U. S. government official believed and acted on the intentional misrepresentation in granting the immigration benefit.

One or both of these factors are necessary to establish inadmissibility based on fraud, regardless of whether the immigrant obtained the immigration relief.

Why Contact The New Jersey Immigration Law Firm Of Curbelo Law?

Immigrants who need help filing an adjustment of status application must:

1. Complete various immigration forms, and 
2. Address complex matters in their immigration process.

Any mistake or lack of compliance with immigration laws can have serious repercussions and make it difficult to obtain a Green Card or visa.

Therefore, we advise foreigners to have the help of our experienced immigration lawyer; Carolina T. Curbelo.

With more than 10 years of experience, Curbelo Law will represent any immigrant who wishes to become legal in the country. Contact us today by our phone number, sending an E-mail or scheduling an appointment with the office, located in Ridgewood, New Jersey.