How the Elimination of the 30/60 Day Rule (And the Replacement with the 90-Day Rule) May Affect Your Adjustment of Status to Permanent Resident

In September of 2017, the Department of State made changes to the “Rule Book” (Foreign Affairs Manual), which had a big effect on new applications for adjustment of status. The change included getting rid of the 30/60 Day Rule and instead using the 90-Day Rule.

What was the 30/60 Day Rule?

General rule: A person cannot have pre-formed intentions to enter the United States for any purposes other than what is permitted under the non-immigrant visa.

Under this rule, if one was to file for adjustment of status within 30 days of coming in to the United States, the immigration officers would assume that he/she is trying to avoid longer procedures. They would assume that he/she planned such a decision before entering the United States, and that he/she is trying to change status fraudulently, by cheating his/her way in.

Example: A woman enters the country and falls in love with a man and they get married within 30 days of her arrival. It just so happens that the immigration officers are not hopeless romantics and therefore they will be very suspicious.

Thought rare, it is not impossible, and if an individual happens to be that rare case in which love at first sight occurs within a 30 day period of his/her arrival to the United States, even then, many attorneys would recommend that the individuals wait to file for adjustment of status and hold off on the marriage a bit.

Additionally, if an adjustment of status application was filed more than 30 days but less than 60 days from the entry into the United States, there would still be a high risk because the immigration officers would still have strong suspicions that his/her intent to do so was planned before entry into the country.

Now that we know what the previous rule was, what is this 90-Day Rule that is taking its place?

What this rule does is that it gives the immigration officers the assumption that a non-immigrant made an intentional misrepresentation at the time the application for a non-immigrant visa if he/she engages in conduct that is inconsistent with his/her non-immigrant status. The Foreign Affairs Manual provides the following examples of what may trigger the 90-Day Rule:

• Working without authorization; or

• Enrolling in any form of school/ academic study, when such schooling was not authorized by the non-immigrant status, so without the appropriate change of status; or

• Marrying a U.S. citizen or lawful permanent resident and living in the United States when in B or F status (B-Status if a temporary business visitor or a temporary visitor for pleasure; F-Status if for studies or employment); or

• Taking up any other activity for which an adjustment of status would be required, without actually changing or adjusting status.

In summary, in doing any of the above stated examples, within 90 days of entry into the United States, immigrant officials may use the 90-Day Rule to help them decide if the applicant has violated the terms of his/her non-immigrant visa.

We mentioned something about having pre-formed intentions to stay when entering the U.S., What does that mean?

Usually, when applying for a temporary U.S. visa, most, if not all, applicants have to prove that they plan on returning to their country. Temporary visa categories (i.e. B, F, J, M, Q, TN) have specific short-term activities assigned to them. An example of such short-term activities includes education, employment, tourism and business. Non-immigrant Intent means that the visa holder does not plan to stay in the U.S. permanently. The non-immigrant visa applicant must then prove that he/she has enough connections with his/her home country that will urge them to leave the U.S. after the temporary visit.

How to prove Non-immigrant Intent at your Visa Interview

It makes sense why an immigrant official asked the kind of questions you heard. If you had your visa interview, you know what we’re referring to.

The officer may ask if you own property or have any investments in your home country. Whether you have a bank account or other ties with your employment. All this is necessary to show that there is still a close relation to your home country, and you intend to go back after you visit, due to such ties.

To prove your non-immigrant intent, you have to show the following:

• You have a home outside of the U.S.; and
• You have no intention of abandoning that home in the near future; and
• That you intend to leave the U.S. upon the termination of your temporary visa.

The consular officer, by asking such questions, wants to make sure that you had non-immigrant intent before granting the non-immigrant visa. If you entered the U.S. through a visa waiver program, the same rules still apply.

What’s the Big Deal?

The big deal is this: Under the 90-Day Rule, there is a red flag if any of the above stated conduct is done within 90 days. But under the 30/60 Day Rule, such presumption was only made if such status was violated within 30 days of entry into the country. So now, if a non-immigrant tries to adjust his/her status within 90 days of entry, the applicant should expect critical observation by the immigration officials.

This does not mean that after 90 days you are free to do as you wish, it just means that there will no longer be an assumption of misrepresentation and fraud. If, however, there are reasonable grounds for the officials to believe than an applicant misrepresented the purpose of his/her travel at the time of his/her visa application, there will be a problem, regardless of whether 90 days passed or not. For this to occur, the immigrant officials must have evidence to show that fraud was more likely than not.

Exceptions for Immediate Relatives of U.S. Citizens?

While there are previous decisions which make immediate relatives of a U.S. citizen free from misrepresentation under the 30/60 Day Rule, the first 90 days should be considered risky for any attempt of adjustment of status. So, while immediate relatives are exempt from the 30/60 Day Rule, this is risky ground. If you entered the United States with a nonimmigrant visa and want to adjust your status as an immediate relative (or even consider marriage) within 90 days, it is important to understand that it is risky and it would be a good idea to speak to an immigration attorney.

What about Duel Intent Visas?

A dual intent visa allows a foreigner to enter the United States as a nonimmigrant but keep the option to adjust status to a permanent resident in the future. Several visas have, within them, the possibility that the visitor will become a permanent resident in the United States.

Example:

A foreign fiancé uses a K-1 fiancé visa to enter the U.S. and marry a U.S. citizen. Most will remain in the U.S. and adjust status to become permanent residents. Likewise, employers will regularly sponsor a foreigner worker for an H-1B visa and later sponsor the nonimmigrant for a green card. Most E-, H-, K-, L-, O-, and P-type visas are dual intent visas.

Contact one of our experienced immigration lawyers in New York and Forest Hills, NY at 718-407-0871 or online at https://www.prizant-law.com if you need help with Adjustment of Status or any other solutions to your immigration problems.

Contributed by Svetlana Prizant, Esq., an Award Winning New York Immigration Lawyer

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