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.