90 day rule - The HMA LAW FIRM

NEW 90 DAY RULE

If you get a student visa (or a tourist visa, or any other nonimmigrant visa) to marry an American citizen two months after your arrival, now there are more severe consequences.

If you intentionally misrepresent your intention to enter the United States, previously, the 30/60 day rule was in effect. According to this rule, within the first 30 days of your arrival to the US, if you are engaged in the following activities which are inconsistent with your legal status, you will be placed in removal proceedings and may be no longer admissible to the U.S. These activities are:

Participating in unlawful or unauthorized employment

Enrolling in a full course of academic study without authorization and/or the appropriate change of status

Living with or Marrying a US citizen or legal permanent resident

Undertaking any immigration-related activity that requires a mandatory status adjustment without petitioning to make that status adjustment

An example will best illustrate such a scenario. For instance, after entering the United States on a B2 visa (a non-immigrant visa), you married a Green card holder and applied for a green card within 30 days of your entry to the United States, the immigration bureau would perceive your B2 filing as a willful misrepresentation of your true intention of entering the United States, which constitutes fraud. Accordingly, you might be barred to enter the United States for life.

This 30/60 day rule allowed some leniency to such consequences if those misconducts happened between the 31st and 60th day after your arrival.

However, such leniency no longer applies. On September 1st 2017, the Foreign Affairs Manual (FAM) replaced this 30/60 day rule with a new 90-day rule. The rule is extended threefold. You will thus face the same consequences if you participate in any of the aforementioned behaviors within 90 days of your first arrival. Moreover, there might still be consequences for your misconduct after 90 days. Yet, there is a difference. Before the 90-day end, the United States Citizenship and Immigration Services (USCIS) presumes you have the motives for misrepresentation, so you have to prove your true intent once there is suspicion of your true intent. After 90 days, there is no more presumption of your willful misrepresentation, yet the USCIS agents may still seek to revoke your visa or deny your adjustment of status based on their reasonable belief about your misconduct.

This new 90-day rule should be on your radar especially when you plan to adjust your status to permanent residence. It is always important to know the law and then avoid unnecessary consequences.

Huirong Jia
HMA Legal Intern

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