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What Is The New 30/60/90 Day Rule? Now It’s Just The 90-day Rule.

What is the new 30/60/90 day rule? Now it’s just the 90-day rule.

Last month the State Department announced that it has eliminated the so-called 30/60/90 day rule. This was an extremely important rule both for visa applicants and those applying for adjustment of status. In this post we’ll remind you what the old rule used to be and explain how the new rule works.

Fraud is the underlying issue.

The main issue here is fraud. Specifically, a visa to come to the United States allows the holder to travel only for the intended purpose. So, if you are coming on a B-2 tourist visa, you need to be coming to the U.S. only for tourism – not with the goal of remaining here as a resident. Learn more about this basic legal concept of immigration fraud here. When someone applies for a visa or residency, the immigration agencies will look at whether the person ever committed fraud in the past. One thing they look at is whether the person ever violated the rules of a previous visa. They ask: “did this person come to the U.S on a visa and do something that was not allowed for that visa type?”

What was the 30/60/90 day rule?

Here is how the rule used to work. The easiest example to use is someone who comes to the U.S. on a B-2 tourist visa (or ESTA), gets married, and seeks adjustment of status (green card status). The immigration agencies would look at how soon the person got married after coming to the U.S.

Under the 30/60 day rule, if the person seeks residency within 30 days of entering the U.S., this was treated as fraud.  The agencies will treat this as fraud. If you were to apply for adjustment of status after the first 30 days but within your first 60 days, this is not automatically presumed to be fraud. But the case would be very carefully scrutinized to determine if there was fraud. After 60 days the timing of your would not raise a concern about immigrant intent.

That was the old rule.

The new 90-day rule.

The new 90-day rule effectively broadens the scenarios that will create a fraud issue. Now, the person is presumed to have engaged in fraud if she does anything inconsistent with her visa status within 90 days of entering the U.S. Under the new rule, for example, entering the U.S. on a tourist visa and getting married in less than three months could create a presumption of fraud.

What behavior triggers the 90-day rule?

The following activities could trigger the fraud presumption of the new 90-day rule:

  • Unauthorized employment;
  • Enrolling academic study without immigration authorization;
  • Getting married to a U.S. citizen or lawful permanent residency; and
  • Any activity that a change of status or adjustment of status is required.

What about adjustment of status cases?

The 90-day rule is technically only for the U.S. State Department. That means it’s direct effect is primarily on those applying for visas at U.S. consulates. But the old 30/60/90 day rule was also – in practice – applied by USCIS in adjustment of status applications. At the moment, we are assuming that USCIS will be applying the new, stricter, 90-day rule. At a later time USCIS could choose to include this in their official Policy Manual. But the safest approach is to assume that they will be applying the 90-day rule starting immediately.

What is the new 30/60/90 day rule? Now it’s just the 90-day rule.
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Sound Immigration

All Sound Immigration attorneys are members of the American Immigration Lawyers Associations. They practice immigration law exclusively, focusing on helping families start new lives in the United States.

This Post Has 10 Comments
  1. i have been coming to the US on three occassions on B1/B2 visa in the process i met my wife to be and we intended to get married in my next visit, how long can i wait before initiating the wedding. please note i have a divorce paper from my previous wedding

    1. That’s really not the right question to ask. Instead, you should be looking at what the appropriate strategy is used to immigrate to the U.S. (if that’s your goal). If you are outside the U.S., it is probably consular processing (I-130 + DS-260). If you are planning to seek adjustment of status that is very likely a bad move.

  2. I’m on F-1 OPT and I will be travelling out of US on vacation this december and I will arrive back to US on Jan 7th, 2018. Will this rule affect me if my employer files H-1B Visa? I think we will be sending H-1B application to USCIS as I’m working here in USA. I’m not sure of difference between applying to USCIS and US Consulate. Can you please give any suggestions if this affects me in any way. Thanks in advance.

    1. Sandy, if your employer is starting an H1B for you then they are responsible for getting an immigration attorney for the process. Take the time to meet with that attorney and get individualized advice rather then relying on your own research… and you don’t even have to pay for the advice!

  3. Hello.
    I entered the state with a esta visa we wanted to get married after 60 days (this is a bona fide mariage) my question is if I respect the 90 days rule I will be forced to be “out “ of my visa and to have over come my stay ? What is the best thing to do ? Go for like 78 days ? Or more ?

    1. Roki, there’s no easy answer here. If you marry too early then you risk an immigrant intent finding. If you wait past 90 days you are subject to the expedited removal provisions of the ESTA/VWP rules. These are very precarious cases, especially in the adjudication environment we are seeing. We discuss ESTA adjustment cases with other attorneys almost every day.

  4. will this new rule apply for people consular processing in their countries? after previous stay in the US, even if they have their unlawful presence waivers? or if they were enrolled at school even if they are minors?

  5. Hello.Just some questions.If the petitioner is US born but their spouse came illegally.The spouse has been illegally in the states for 10yrs but has some proof of pay stubs at various employers.Not from the full tens yrs and hasnt filed income tax for the past three years as the current employer doesnt pay in stubs only cash.Outside of minor traffic tickets (driving with a license not of this country,license never suspended) and no criminal background (not in the US or outside).Can the petitioner still file for the beneficiary?

    1. An inspected entry is a black-and-white requirement for adjustment of status under INA 245A. It doesn’t matter if the person has been her for 10 years. (You’re probably thinking about a deportation defense, called cancellation of removal, that requires 10 years presence). Your spouse would need either a “grandfathered” visa petition filed at/before 2001, or would end up needing to depart the country and “consular process” with (at least) a waiver for unlawful presence. That’s in terms of marriage-based basics – he might have other options.

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