What is the 90-Day Rule and how does it affect the adjustment of status?

What is the 90-Day Rule and how does it affect the adjustment of status?

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Until September 2017 the US Department of State, DOS, and the US Citizenship and Immigration Services, USCIS, operated under a 30/60 Day Rule by which adjudicators made an initial assessment as to whether a foreign national misrepresented a material fact in order to get a visa or other immigration benefit. After the aforementioned day, it transformed into the 90-Day Rule.

The old rule stated that if the foreign national engaged in activities that were inconsistent with his or her nonimmigrant visa within 30 days of entry, a presumption was made of whether he or she misrepresented his or her intentions when applied for the nonimmigrant visa.

An example can be if the person entered the country with a tourist visa and then got married between 30 and 60 days of arrival in the United States.

However, after September 2017 this rule was replaced with the 90-Day Rule which changed the timeframe of an inconsistent activity to have occurred. Even if the misrepresented conduct takes place after 90 days of arrival, the adjudicator can also have a reasonable belief that the person misrepresented himself or herself in obtaining the visa or when admitted into the territory.

This was published in the Foreign Affairs Manual (FAM) in an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry”.

It is also important to mention that the 90-Day Rule is an analytical tool and is not binding on USCIS.

What types of conduct are considered inconsistent with a foreign national nonimmigrant status?

For purposes of the 90-Day Rule, the type of conduct that violates or is inconsistent with the foreign national’s nonimmigrant status can include, but is not limited to the following:

• Engaging in unauthorized
  employment;
• Enrolling in an academic course
  (one that is not authorized for the nonimmigrant classification);
• A nonimmigrant in B or F status,
  or any other status prohibiting immigrant intent, marries a US citizen or
  lawful permanent resident and takes up residence in the US;
• Undertaking any other activity for
  which a change of status or adjustment of status would be required without
  changing or adjusting status.

If a consular officer becomes aware of derogatory information that indicated that an alien in the United States with a valid visa may have misrepresented his or her intentions when applying for a visa or to the DHS (Department of Homeland Security) at the port of entry they can bring these facts to the attention of the department for potential revocation.

If you believe you may have incurred into an action inconsistent with the purpose of your nonimmigrant visa you need to seek professional advice as soon as possible. Kannan Law has immigration attorneys in California at your disposal, contact us today for guidance.