The USCIS 90-Day Rule

What Is the 90-Day Rule?

U.S. Citizenship and Immigration Services (USCIS) uses the 90-day rule when assessing immigration applications. When a temporary visa holder marries or applies for a green card within 90 days of entry to the United States, USCIS assumes that the applicant misrepresented their original intentions. Most temporary visas are single-intent. This means that the visa holder declared that they only intended to use their visa for one specific purpose. Often, this purpose is tourism, business, or study. After some time, the visa holder must leave the country.

The 90-day rule applies to those who use the Visa Waiver Program/ESTA or enter the U.S. with a B, F, J, M, Q, or TN visa. The U.S. Department of State’s Foreign Affairs Manual (FAM) classifies these visas as nonimmigrant visas. These are conditional, meaning they do not allow you to stay in the U.S. permanently.

So if you marry or apply for a green card less than 90 days after your arrival, USCIS may have an issue. Misrepresenting your original intentions can seriously hurt your chances of getting a green card.

What If Your Plans Change After You Enter the U.S.?

You can change your immigration plans after entering the country only if an unexpected circumstance arises. USCIS will not fault you for changing your plan as long as you originally intended to leave the United States before you entered on your visa. 

If you break the 90-day rule, you’ll still have a chance to convince USCIS that you did not misrepresent your original intentions. For instance, USCIS may not fault you if a personal, family, or professional situation suddenly changes during your stay. That said, avoid breaking the 90-day rule if you can. If you break it, the burden is on you to prove your original intentions.

How Do You Count the 90 Days?

To accurately count your 90 days, add 90 days to your most recent U.S. entry date on your Form I-94 travel records (Arrival/Departure Record). The 90-day rule only applies to your most recent entry. If an older stay exceeded 90 days but you have since left the U.S. and returned, USCIS resets your 90 days. You’ll have to wait an additional 90 days to honor the rule. 

The rule also only applies to your most recent visa. If you were previously in the United States on a dual-intent visa but returned later with a single-intent visa, USCIS will only consider your most recent visa status.

How Is the 30/60 Rule Different?

Before September 2017, U.S. Citizenship and Immigration Services (USCIS) used the 30/60-day rule instead of the 90-day rule. According to the earlier USCIS policy:

• If you filed an adjustment of status application within 30 days of entering the United States, USCIS assumed you misrepresented your intent and usually denied your application. 

• If you filed between 30 and 60 days of entering, USCIS flagged your application as suspicious but did not outright disqualify you from green card status. 

• If you filed 60 days or later after your arrival, USCIS did not view your application as suspicious. 

Now, USCIS has replaced this rule with a new 90-day rule for all applicants. 

Who Does the 90-Day Rule Apply To?

The 90-day rule applies to those with single-intent nonimmigrant status who came to the United States under a temporary stay. The rule does not apply to dual-intent visa holders, including those with H-1B or L visas.

Sometimes, single-intent visa holders break one of the following immigration law rules in their first 90 days here:

• Engaging in unauthorized employment

• Enrolling in an unauthorized course of study without the appropriate student visa

• Marrying a U.S. citizen or lawful permanent resident (green card holder)

• Attempting a change of status by filing Form I-485, Application to Register Permanent Residence or Adjust Status

If a single-intent visa holder does any of the above, U.S. Citizenship and Immigration Services (USCIS) may find that they misrepresented themselves when they originally applied for their visa. If you apply from within your home country through consular processing, the National Visa Center (NVC) may also find misrepresentation.

If a single-intent visa holder does any of the above actions outside of the initial 90-day period, USCIS won’t immediately assume they misrepresented their original intentions. But USCIS may discover evidence of willful misrepresentation during your application process. For example, if you say that you came to the United States and intended to remain here during your green card interview, USCIS or your consular officer has reason to doubt your original intentions and may deny your application.

What Are the Consequences of Breaking the 90-Day Rule?

The 90-day rule is a guiding principle. Breaking the rule does not always mean that U.S. Citizenship and Immigration Services (USCIS) will deny your application. USCIS officers use the 90-day rule to assess whether applicants misrepresented their original intentions before traveling to the United States.

USCISimmigration officers take misrepresentation very seriously. They will likely deny your green card application and may revoke your visa. This can lead to deportation. To prove that you did not misrepresent yourself, you need to provide additional evidence. If you can convince them of this, you might still have your application approved.

Proving Nonimmigrant Intent

You won’t necessarily lose out on your chances for a green card if you break the 90-day rule. But be prepared to answer USCIS’s questions. USCIS will ask about your original intentions when traveling to the United States. You must convince your USCIS officer that you did not misrepresent your initial intentions to gain their approval. At your green card interview, you may present evidence of your intent to return to your home country. Such evidence can take the form of continuing employment, property ownership, or travel bookings.

If your situation changed because of factors outside your control, proving your nonimmigrant intent should be easier. For example, suppose you intended to leave the U.S. but stayed after your spouse or family member faced a sudden health emergency. In this case, you could present your situation as evidence that your intentions changed only after you arrived in the country.

Your USCIS officer will make the final judgment on your nonimmigrant intent. Be sure to keep thorough records to prove your nonimmigrant intent. Always be honest. Misrepresenting facts or lying can hurt your application.