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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 and USCIS?

Adjsutment of Status applications are handled by USCIS. The 90-day rule was created by the U.S. State Department and has not been adopted by USCIS. Indeed, the official USCIS Policy Manual expressly states that it is not bound by the 90-day rule.

The 90-day rule is not a “rule” in the sense of being a binding principle or decision .  The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.

This means that USCIS does not need to automatically assume fraud, for example, if someone on a B-2 visa gets married to a U.S. citizen within 90 days of arriving in the U.S. But the Policy Manual reminds adjudicators that they can certainly consider such timing when determining if someone abused a temporary visa. The Policy Manual provision means that attorneys and individuals need to carefully consider the particular facts of a case to see if they would suggest to USCIS that a couple intended to circumvent the legal immigration process.

Updated June 5, 2018 to reflect USCIS Policy Manual Update.

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 57 Comments
  1. My wife came to the U.S. under J1 visa in May 23rd. I’m a U.S. Citizen and we met and decided to get married. We flew over to Korea and did our small reception in September and came back to the U.S. (she came back with her J1 visa with no 2 year home country requirement) where we officially got married. my question is would our short trip back to Korea reset 90 day clock? because the marriage took place in the U.S. well after our 90 days from her initial arrival. However, our marriage took place a day after her last arrival. of course I didn’t know about this preconcevied intent and 90 day rules.

    1. The 90 day rules doesn’t apply in adjustment adjudications according to USCIS. But it sounds based on your description like she had a pre-formed intention to seek adjustment at the time of her last entry. If so, that’s problematic regardless of how long you wait to file.

  2. Hi, I am currently on F1 STEM OPT visa (expiring end of April in 2019) and my firm will be filing h1b for me in Apr 2019. Will this 90-day rule affect me, i.e. is it ok for me to travel internationally within the 90-day period before h1b filing? Thank you!

  3. I have been in the US on a J1 visa, working for a University in OR for 5 years. I am currently in my 30 day grace period. I am planning on getting married to my US boyfriend (of 5 years) before the end of my 30 day grace period and applying for Adjustment of Status and a Green card. However, recently I left the US for volunteer work and returned August 1st to continue my work with the University, our marriage will now be within 90 days of my last entry to the US. Does the 90 day rule still apply to me even though I have been carrying our research in the US on the same J1 visa for 5 years?

  4. I am a USC and my wife is canadian, we have been married for 13 years. We recently visited our vacation home in Florida and have decided to remain long term. When we entered, we told the Customs officer we would be staying for three weeks only which was our legitimate intent. Customs limited her I-94 record to expire in early July 2018. We would need to wait until August 2018 to complete the 90 day period from entry. What is preferable, to file the AOS while my wife is in status or to wait until the 90 day period is complete and file, even though she is then out of status?

    1. Hi, Bhupinder. USCIS (subsequent to this post’s publication) has clarified that the 90-day rule does not apply to it. At most it is an “analytical aid.” So we would not base timing decisions around the 90-day framework in AOS matters.

  5. Hi,
    My wife came to US on visit visa in June 2017. We knew each other for couple years and she visited US many times in last 10 years. We were not planning to get married but my green card process was stuck more then 3 years and finally I applied my I-485 in June 2016 and had no progress till August 2017. So i convinced her and her family to get married here and i will add her in my I-485 process. After lot of convincing they agreed seriously as i did not want to travel unit i get my green card as we are from Pakistan and all the 7 country ban was going on and Pakistan was suppose to be 8th in news. So we got married on September 2nd 2017. Added her in my I-485 proceed on 20th November USCIS (receipt date). Got my Green card in hand on 2nd Feb. Today her I-485 status says “Case is Ready to Be Scheduled for An Interview”. I did not had any interview so not use why she is getting one. I had not idea about is 90 days rule. We got married after 64 days. Is 90 day rule an issue in my case? Please let me know

    1. Hi, Hassan. USCIS is moving toward the policy of interviewing all benefit applicants. The agency could have concerns about fraud, or this could simply be an instance of the new approach, which is to interview everyone.

  6. Hello!Am a Filipina my fiance sponsored me to came here in US to get married here..i just arrived last feb.2 and we got married last feb 7,2018…as of now wernt apply green card or adjustment of status because we’re saving first money for the payment…and am worried because the immigration gaved me upto May 1,2018 of my visa..is they’re possibility that they deport me even if am already to an American citizen?or they can give me more days anyway I will apply it if our money is already exact for the payments..?thanks!

    1. For fiancee visas you have to be married and file the Form I-485 within 90 days of arrival. So long as that window has not yet expired a person cannot be deported unless they do something else – like commit a crime – that makes them subject to deportation.

  7. Hello,

    I am a U.S citizen and my fiance is Australian and resides there while I am here. I understand the 90 day rule, I’m just a little confused about if it still applies if we were to get married here in the U.S while he’s visiting me on the ESTA, and then he leaves and goes back to his home country soon after marriage to finish up his affairs there, and then returns months down the line, again on the ESTA, and applies for adjustment of status then.
    Would our situation still be considered fraudulent if he were not to try to attempt to stay here after we get married on the ESTA? If we could show that getting married was spontaneous (but occurred under 90 days)? Furthermore I just don’t really understand how anyone could get married/apply for a green card AFTER 90 days anyway, since they are only allowed to be in the U.S. for 90 days maximum on the ESTA? Would it not be considered illegal no matter what you do?

    1. Hi, Brigette. Well, that actually things even more complicated. His return trip to the U.S. could implicate immigrant intent issues. He will likely need to pursue a visa from the U.S. consulate in Sydney. Let us know if you’d like an attorney for that process. We just got an approval from the Sydney consulate today (for a procedure for filing a spousal petition, which unfortunately doesn’t apply to you if you are in the USA).

  8. Good day,

    We just got married and about to apply for the adjustment of status. I’m currently employed for 5 years with the same company, therefore my main concern is whether or not should I disclose this on my green card application and will there be an issue applying for the temporary work permit? I’m paying taxes and getting my W-2s, when “technically” I should not be working.

    Please, advise.

    Thank you kindly!

    1. Should you lie on your Form I-485?

      Should you lie to the federal officer adjudication the application?

      Should you commit perjury?

      This depends on whether you want to risk being barred from the U.S. for the rest of your life and potentially subject to criminal prosecution, a fine and federal prison.

  9. Hey! My girlfriend came here on a tourist visa with the idea of possibly getting married. I have proposed and we would like to get married immediately so she can start working. She initially came here for my brothers wedding. Is this possible? She has only been here two weeks. Would it be easy to get married in a different country and then come back so we can avoid the 90 day law?

    Thanks

    1. Hi, Joe. You definitely need to take a careful look at the rules concerning immigrant intent. Also, visa fraud and immigrant intent are just one of the many requirements for adjustment of status under Immigration and Nationality Act 245A. You will also need to ensure that she meets all other requirements before proceeding. But marrying and re-entering the U.S. with the intent to pursue adjustment would almost certainly be a violation of the anti-fraud provisions for reasons explained in the other post we link.

  10. Hi! My gf came to the states 2 months ago and I would Like to know if I marry Her legally will she get to stay and adjust her status or will she have to go back to her country until the paper is processed? Thanks in advance

    1. Hi, AJ. Well, there are a lot of factors that go into whether she is eligible or not. The timing of the marriage is only one issue. Read about immigrant intent. You can get a sense of the adjustment process here. But if you’re doing this yourself, please take the time to research all of the requirements for 245A adjustment eligibility *before* you file.

      1. Thank you so much for getting back to me I appreciate it. I’ll read up on the link you showed me but if I dont Understand something can I reach out back to you for some help?

  11. Hello!
    I am a US citizen and my foreign boyfriend entered into the states nearly 4 months ago on a B2 visa to meet my family and get to know the states better. After more than 3 months of being here, he proposed. We have decided to get married in the next month. We would like to apply to adjust his status since we are now getting married and planning to live in the states.
    Is there any reason why USCIS would not approve of this?

    1. Hi, Ash. Yes, there are scores of “grounds of inadmissibility,” any one of which could bar adjustment. Then there are the requirements of Immigration and Nationality Act 245(A) (governing adjustment of status) that have to be met.

      So the question is somewhat analogous to asking, “I took French 101, will I graduate college?” French 101 might be one requirement for graduation, but there are a bunch of other requirements. If you decide to tackle this on your own, it will be your job to ensure that you’re educating yourself about all of those other requirements and ensuring that you qualify.

  12. Hi i’m an italian citizen and i have entered the states a month ago under the ESTA status and the CBP gave me 90 days to stay in the states and i have met a girl here and we are currently together and i’ve been thinking of changing my plans and to stay in the states and make residency so i got adviced by people if i’m seeking that we will have to get married and there is no other way to male residency documents so my question is if i need to change my plans and stay what should i do do i really need to marry her or what ! and i spoke to her and she doesn’t mind the idea just to stay together

    1. Hi, Amro. There is no path to residency through a relationship unless you actually get married. (Or engaged, but the fiance visa is available only if you are outside of the U.S.). We have a detailed post on ESTA adjustments here.

      1. so if i got married can i stay here in the states and apply for a green card even if i the 90 days window has been passed cause i still have about 60 days and i f yes which kind of applications should i apply to !
        Thanks in advance

  13. hi, i am a green card holder… i got married in 2016 december and i have submit papers for my abroad wife in 2017 april. i have submit i-130 with appropriate papers. by any chance do you know how long does it take to process.

  14. Hi, my wife is traveling to China and planning to come back next week or so. She has a valid F-1 visa. Do I have to wait 90 days after she come back to file the I140 (she is listed in my I140)? Thanks!

  15. Hello,please my daughter and I live in Italy but we are Ghanaians,my hubby a US citizen filed an i130 July 2017…we haven’t received any approval yet..please any ideas how long the whole process,and is there a possibility of the visa been approved before 2years from date of application of i130..am a little desperate because our son is constantly sick and I need his father to be around,we have a need to be together to help the child. Thanks

  16. My employer is considering to sponsor my I-140/I-485 concurrent application (adjustment of status without leaving the US). I currently have TN status. In the context of the new 90 day rule, and assuming that the USCIS will apply it, starting exactly when are the 90 days counted? Does it start when I first applied for and obtained my current TN? or does it start when I last entered the US with my TN?

    1. Hi, Dan. The 90-day rule doesn’t formally bind USCIS, which is in charge of I-485 applications. Your employer should have secured a lawyer for this process, and you should be able to consult directly with that firm about your questions.

  17. I am Taiwanese. My husband just got American citizen. I vwp immigration to Guam. Stay valid for only 45 days. During my husband just got citizenship. So we temporarily decided to get married. And live together. How long do we apply for marriage registration and submit an application?Thank you so much!

    1. Hi, Ting – congratulations on the marriage! The marriage-based visa process may be initiated as soon as a couple’s marriage is legally complete. In terms of the procedure, we would definitely need to get more details before advising you which strategy is appropriate for you. In some cases a foreign national in your circumstance may seek adjustment of status while on VWP. We do this for clients very often. (Read more about that procedure here). But entering the U.S. on VWP with the pre-formed intent to seek adjustment is an act of fraud. (More here). You will want to secure competent, individualized advice before proceeding, as the wrong move can have disasterous consequences, including a lifetime fraud ban.

  18. Hello, I am a US citizen and my husband is French. We are living in France but are planning on visiting the US in May, we would like to stay and for him to apply adjustment of status. With the new 90 day rule he would have to wait the 90 days, but would they see it suspicious if I find work after the first month we move or should I wait 90 days as well to look for work, open a bank account, etc?

    1. It’s actually far more complicated than that.

      Entering the U.S. on ESTA or a B-2 with the intention to seek adjustment usually constitutes fraud. Seeking adjustment in that scenario can result in a lifetime ban from immigrating to the United States. Learn more here.

  19. My husband and I are in the US currently on e3 and e3d visas respectively. He won this years lottery and we plan on doing an AOS.

    My question is related to the 90 day rule. We just returned back to the states from a vacation overseas and I assumed this ment we had to wait 90days before we start our green card process however, I have been told this rule only applies to people entering the US for the first time. I was told since we have been in the US on our current visa since Aug 2016 even though we left for vacation we came back in on the same visa so we do not need to wait 90 days.

    Is this correct?

    Thank you in advance.

    1. Hi, Kate. You need to tread carefully with this one. The E-3 visa does *not* permit the holder to harbor immigrant intent. Entering the U.S. with the pre-conceived intent to seek adjustment of status could subject you both to a lifetime ban from the United States under fraud provisions of the immigration statute. In such a scenario you may be better counseled to pursue the DV visa through a U.S. consulate. Note also that the 90-day rule does not technically bind USCIS, which is wholly separate from the Department of State.

      1. Thank you so much for getting back to me! I have heard from numerous others that have been successful from changing e3 to AOS in the US after winning in the lottery but I understand it could be risky. How can they determine wilful misrepresentation? – we have been living here for 3 years on the e3 but only recently changed our mind that we would in fact like to stay permanently. Could we not just state that?
        Also, I’m not quite sure I understand what you mean in regards to the 90 day rule and if it’s something that we need to consider ?
        Thank you again for your help.

  20. Hi! My husband has been on F1 Visa for 5 years, recently we left USA to go to Canada for a short conference, came back (re-entered USA) in October. Now we’re applying for i-485 for adjustment of status. The question is, should we wait for 90 days after the re-entry to complete the I-693 medical exam? Should we definitely file i-485 after thee 90 days period?

    Thanks a ton!

  21. My spouse have been applied before 6 month ago….but he didn’t get the approval letter yet from the USCIS…..so I want to know the reason of delaying…..

  22. 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.

  23. 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!

    2. Hi Sandy,

      I am in the same situation. Did you find any solution for that? Please do help me with this situation if you can.

      Thanks a ton.

  24. 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.

  25. 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?

  26. 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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