What is the 90-Day Rule?
I-94 document verifies the date of entry into the United States. For temporary visa holders, if a marriage-based Green Card application is filed within 90 days from the arrival date on I-94, USCIS will presume that the nonimmigrant misstated their true intent initially to enter into the United States. It is critical to understand the 90-day rule to avoid any unnecessary difficulties in the marriage-based Green Card application.
I. What is the U.S. Department of State’s 90-Day Rule?
The U.S. Department of State (DOS) developed its 90-Day Rule in order to determine whether a nonimmigrant willfully misrepresented his or her intents when applying for their visa application, referring to the I-94. The 90-day rule indicates that if a nonimmigrant engages in conduct that violates his or her immigration status or made misrepresentation of their intent to enter the United States on a temporary visa, these actions will raise concern with the USCIS. Specifically, if it becomes apparent that a nonimmigrant temporary visa holder entered the United States with the false intent to permanently reside within the United States, and engages in prohibited actions, such as obtaining a marriage-based Green Card, it is highly likely that the Green Card application will be denied, along with the revocation of any current temporary visa. As a result, should a nonimmigrant temporary visa holder file for a marriage-based Green Card application within 90-days of arrival to the United States according to the I-94, it will be presumed that they willfully made misrepresentations about their intentions when entering the United States using a temporary visa.
Although life situations can be unforeseeable and unexpected, it is highly recommended that an applicant for marriage-based Green Card waits beyond the 90-day rule window to avoid any suspicions or having the need to convince USCIS officers that no misrepresentations were made.
II. Does the 90-Day Rule apply to me?
The rationale behind the 90-day rule is to ensure that nonimmigrant temporary visa holders do not misrepresent their intentions when entering the United States. Some visas, such as H, L, or O visas are considered to be dual intent visas. This dual intent allows the visa holder to not only temporarily reside in the United States, but is allowed to have the intent of permanently relocating to the United States.
However, if you are a nonimmigrant with a temporary visa such as: B, F, J, M, Q, and TN, you are considered to not have the intent to permanently relocate to the United States, and engaging in contrary activities may result in the termination of the current visa, as well as a likelihood that the marriage-based Green Card application will be denied.
III. What if my intentions changed during the 90-Day Rule?
Although life events can be unforeseeable and unexpected, the 90-day rule will still carefully scrutinize each situation on a case by case basis. The burden of proof will fall on the applicant of the marriage-based Green Card. This means that the applicant must provide evidence and documentation to convince USCIS officers that due to some life changing events, the intention of the nonimmigrant changed within 90-days from the arrival date on I-94.
Even though the nonimmigrant marriage-based Green Card applicant’s intent may have naturally changed through unforeseeable life changing events, it is highly recommended that the marriage-based Green Card applicant waits the 90-days to avoid any unnecessary difficulties with the Green Card application process. Should the marriage-based Green Card application process begin within the 90-days after arrival to the United States, USCIS will presume that the nonimmigrant initially misstated their true intent to enter into the United States and may face unnecessary difficulties with their application process and even negative consequences, such as termination of existing valid visas.
IV. When does the 90-day begin?
When counting the days for the 90-day rule, the nonimmigrant must look at their I-94 (Arrival/Departure Record) document to verify the date of entry into the United States. The 90-day rule will apply 90 days from the most recent date indicated on the I-94 document.
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