If your parent is currently visiting the U.S. on a visitor visa, you may be wondering whether they can stay permanently by applying for a green card. While this is possible in some cases, the process can be complex and requires careful preparation.
Perhaps the biggest issue to address is the risk of being charged with tourist visa fraud due to pre-conceived intent.
Understanding the steps, eligibility requirements, and potential obstacles can help ensure a smooth transition to lawful permanent residency (LPR) for your parent.
Which Immediate Relatives of a U.S. Citizen Are Eligible for a Green Card?
The U.S. allows certain immediate family members of U.S. citizens to apply for a green card under the Immediate Relative Immigrant Visa category. Eligible family members include:
- Parents (if the sponsoring U.S. citizen is at least 21 years old)
- Spouses of U.S. citizens
- Unmarried children under 21 years old
While these family members can apply for green cards, they must still meet all eligibility criteria, such as lawful entry into the U.S. and proving the legitimacy of their relationship to the petitioner.
Two Paths to a Green Card: Adjustment of Status vs. Consular Processing
1. Adjustment of Status (AOS) – If Your Parent is Already in the U.S.
If your parent is currently in the U.S. on a valid non-immigrant visa, such as a tourist visa, they may be eligible to adjust status to a green card holder without leaving the country. To qualify, they must:
- Have entered the U.S. legally (i.e., inspected and admitted at a port of entry)
- Not have committed visa fraud (i.e., entered the U.S. on a tourist visa with the intention of staying permanently)
- Have a sponsoring U.S. citizen child who is 21 or older
2. Consular Processing – If Your Parent is Outside the U.S.
If your parent is not currently in the U.S., or if they cannot adjust status due to visa issues, they will need to apply for a green card through consular processing. This means:
- You (the U.S. citizen child) must file Form I-130, Petition for Alien Relative, which is an immigrant visa petition.
- After USCIS approval, the case is sent to the National Visa Center** (NVC)** for further processing.
- Your parent will be scheduled for an interview at the U.S. embassy or consulate in their home country.
- If approved, they will receive an immigrant visa, allowing them to enter the U.S. and receive their green card.
Consular processing can take 2 years or more.
The 90-Day Rule: Understanding USCIS’s Policy on Preconceived Intent for B-2 Visa Holders Applying for Adjustment of Status
The 90-day rule, as articulated by the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS), plays a crucial role in assessing whether a nonimmigrant entered the U.S. with a preconceived intent to violate the terms of their visa. This rule is particularly significant for B-2 tourist visa holders who later apply for Adjustment of Status (AOS) to become lawful permanent residents (green card holders).
Understanding how this rule works is essential to avoid allegations of visa fraud or misrepresentation, which could result in denial of an adjustment application and possible immigration bars. This article provides a detailed examination of the 90-day rule, how USCIS applies it, its implications for B-2 visa holders seeking AOS, and potential legal considerations.
What Is the 90-Day Rule?
The 90-day rule is a guideline used by U.S. consular officers and USCIS adjudicators to determine whether a nonimmigrant misrepresented their true intentions when applying for a visa or entering the U.S.
According to this rule:
- If a foreign national violates the terms of their visa within 90 days of entry, it is presumed that they misrepresented their intent when seeking admission to the U.S.
- If a foreign national applies for adjustment of status within 90 days of entering on a B-2 visa, USCIS may presume that they had preconceived intent to immigrate, which is generally not allowed for tourists.
This rule is primarily used in the adjudication of visa applications and adjustment of status cases to determine if a person engaged in conduct inconsistent with their stated nonimmigrant intent.
How the 90-Day Rule Applies to B-2 Visa Holders
A B-2 tourist visa is intended for temporary visits to the U.S. for leisure, tourism, or medical treatment. It does not permit a person to enter with the intent of filing for a green card immediately after arrival.
However, if a B-2 visitor:
- Marries a U.S. citizen and applies for a green card, or
- Files for adjustment of status (Form I-485), or
- Changes to another visa category (e.g., work visa or student visa)
within 90 days of entry, USCIS may assume that they had preconceived intent and misrepresented their true intentions at the time of admission. This can complicate the process of obtaining lawful permanent resident status.
Key Violations That Trigger the 90-Day Rule
- Applying for Adjustment of Status within 90 days
- Marrying a U.S. citizen and filing for a green card
- Engaging in unauthorized employment
- Enrolling in school without first changing status to an F-1 student visa
- Applying for a change of status to an immigrant or dual-intent visa (e.g., H-1B, L-1, K-1, etc.)
If any of these actions occur within 90 days, USCIS may determine that the applicant intended to immigrate at the time of entry, which would constitute misrepresentation.
Implications of Violating the 90-Day Rule
If USCIS finds that a B-2 visa holder violated the 90-day rule, it may result in:
- Denial of the Adjustment of Status application (Form I-485)
- A finding of visa fraud or misrepresentation, which can lead to:
- Permanent ineligibility for U.S. visas
- The need for an I-601 waiver (waiver of inadmissibility)
- Potential removal (deportation) proceedings
Importantly, a presumption of misrepresentation is not automatic—the applicant may provide evidence to rebut the assumption that they had preconceived intent.
What Happens After 90 Days?
If a B-2 visa holder applies for Adjustment of Status after 90 days, the 90-day rule no longer applies. However, this does not guarantee that the application will be approved. USCIS may still assess intent based on the applicant’s actions and prior immigration history.
Does Waiting 90 Days Guarantee Approval?
- No. While waiting more than 90 days reduces the likelihood of a preconceived intent finding, USCIS still examines the applicant’s overall immigration history and circumstances.
- Officers may still question why the applicant decided to apply for a green card after entering as a tourist.
How to Overcome the 90-Day Rule Presumption
If USCIS applies the 90-day rule and suspects misrepresentation, the applicant may present evidence to rebut the presumption, including:
- Demonstrating a change in circumstances
- Example: A tourist unexpectedly falls in love and decides to marry a U.S. citizen, which was not planned before entry.
- Medical emergencies or family situations
- Example: The applicant planned to return home but faced an unforeseen medical condition requiring long-term care.
- Proving that there was no preconceived intent
- Example: The applicant originally intended to return home but later received a legitimate job offer and changed plans lawfully.
Common Misconceptions About the 90-Day Rule
1. The 90-Day Rule Is a Hard Law
- False. The 90-day rule is a guideline, not a legally binding statute. USCIS officers use it for analysis but still review applications on a case-by-case basis.
2. Waiting 91 Days Makes It Safe to Apply
- Not necessarily. While waiting beyond 90 days reduces scrutiny, intent can still be questioned.
3. The 90-Day Rule Only Applies to B-2 Visa Holders
- Incorrect. The rule applies to all nonimmigrant visa holders (e.g., F-1, J-1, ESTA/Visa Waiver Program entrants).
Best Practices for B-2 Visa Holders Considering AOS
- Avoid entering the U.S. with preconceived intent
- If you plan to immigrate, consider applying for an immigrant visa abroad instead of misusing a B-2 visa.
- Wait at least 90 days before applying for AOS
- This helps avoid automatic misrepresentation assumptions.
- Gather evidence of genuine nonimmigrant intent
- Keep proof of return tickets, job commitments abroad, and financial ties to your home country.
- Consult an immigration attorney
- If you are unsure about your case, professional guidance can help avoid visa fraud findings.
Step-by-Step Process to Get Your Parent’s Green Card
1. Gather Supporting Documents
When applying for your parent’s green card, you will need to submit specific documents to prove eligibility. These may include:
- Your birth certificate (showing the parent-child relationship)
- Your U.S. passport or naturalization certificate
- Your parent’s valid passport
- Your parent’s I-94 arrival record (for Adjustment of Status cases)
- Parents civil marriage certificate (if petitioning for your father and you were born out of wedlock)
2. Complete Required Forms
For parents already in the U.S., you must file:
- Form I-130 (Petition for Alien Relative)
- Form I-485 (Application to Register Permanent Residence or Adjust Status)
- Form I-864 (Affidavit of Support, proving financial ability to support your parent)
- Form I-693 (Medical Examination Report from an approved doctor)
For parents outside the U.S., you must file:
- Form I-130 (Petition for Alien Relative)
- Form DS-260 (Online Immigrant Visa Application)
- Form I-864 (Affidavit of Support)
- Medical examination results from an approved panel physician
3. Attend Medical Examination & Biometrics Appointment
Your parent will need to undergo a medical exam by an approved USCIS doctor. If applying through consular processing, this exam must be done before their visa interview. When applying for adjustment, medical must be done BEFORE you file your I-485.
They will also be scheduled for a biometrics appointment, where USCIS will collect their fingerprints and photograph for background checks.
4. Attend Green Card Interview
Whether applying from within the U.S. or abroad, your parent will be required to attend an interview with an immigration officer or consular official. During this interview, they will be asked questions about their background and relationship to you.
5. Receive a Decision
- If approved, your parent will receive their green card in the mail (if adjusting status within the U.S.) or an immigrant visa (if applying abroad), granting them lawful permanent resident status.
- If USCIS or the embassy requires additional information, they may issue a Request for Evidence (RFE), which must be responded to promptly.
Current Visa Processing Times
Processing times can vary significantly. Here’s an estimate:
- Adjustment of Status (within the U.S.): 12-24 months
- Consular Processing (outside the U.S.): 18-24 months
You can check current processing times for your case on the USCIS website.
How Much Does a Parent’s Green Card Cost?
|
Fee Type |
Cost (as of 2024) |
| I-130 Petition | $675 |
| I-485 Application (if in U.S.) | $1440 |
| Medical Exam | Varies ($300-$500) |
Work authorization and advance parole are extra. For the latest fee updates, visit the USCIS Fee Schedule.
Common Reasons for Delays or Denials
Your parent’s green card application could be delayed or denied for several reasons:
- Incomplete or incorrect application
- Failure to provide sufficient supporting documents
- Medical inadmissibility (certain health conditions can cause denial)
- Unlawful entry or visa overstays
- Previous immigration violations
- Problems with Parent or Child’s birth certificate
- Is this the biological parent
- Is this a step parent that married your biological parent while you were under age 18?
- Were you born out of wedlock?
FAQs on Adjustment of Status for Parents of U.S. Citizen Children Over 21 Who Entered as Tourists
GENERAL QUESTIONS ABOUT ADJUSTMENT OF STATUS (AOS)
1. Can a U.S. citizen child over 21 sponsor their parents for a green card?
Yes, a U.S. citizen who is at least 21 years old can petition for their biological or adoptive parents to obtain a green card as “immediate relatives.” Immediate relatives are not subject to visa quotas, meaning there is no waiting period for a visa to become available.
2. Can my parents adjust status while in the U.S. on a tourist visa?
Yes, if your parents were lawfully admitted to the U.S. and meet all other eligibility criteria, they may apply for adjustment of status (AOS) using Form I-485 without leaving the country. However, they must not have entered with the preconceived intent of applying for a green card, as this could be considered misrepresentation or fraud.
3. What is the 90-day rule, and how does it affect my parents’ application?
The 90-day rule is a guideline used by USCIS to evaluate whether a nonimmigrant visa holder misrepresented their intentions when entering the U.S. If your parents apply for AOS within 90 days of entry, USCIS may presume they had preconceived intent to immigrate, which could lead to their application being denied or flagged for fraud.
Best Practice: It is generally advisable to wait at least 90 days after entry before filing for AOS to minimize the risk of a preconceived intent finding.
4. If my parents entered on a tourist visa and stayed beyond 90 days, can they still adjust status?
Yes, once 90 days have passed, the presumption of misrepresentation is reduced, but USCIS can still consider the overall circumstances. Parents of U.S. citizens are immediate relatives and are not subject to bars for overstaying (as long as they entered legally). However, if they violated their status in other ways (e.g., unauthorized employment), that could impact their eligibility.
5. Can my parents obtain lawful permanent resident status through refugee status?
Yes, individuals can become lawful permanent residents (LPRs) not only through consular processing but also by applying for asylum or refugee status. This pathway is important for those seeking to immigrate to the U.S. under humanitarian grounds.
LEGAL RISKS & CONCERNS ABOUT ADJUSTMENT OF STATUS
6. What happens if my parents entered on a B-2 visa but had the intention of applying for a green card?
If USCIS determines that your parents always intended to immigrate but entered the U.S. using a tourist visa under false pretenses, they could be found guilty of misrepresentation or visa fraud. This could lead to:
- Denial of their AOS application
- Possible removal proceedings
- Inadmissibility in future immigration cases
Best Practice: If your parents genuinely intended to visit temporarily and later changed their minds, they should have evidence supporting their original nonimmigrant intent (e.g., return flight tickets, proof of employment abroad, property ownership in their home country).
7. My parents said at the airport that they were “just visiting.” Can this be used against them?
Possibly. If they were questioned by Customs and Border Protection (CBP) and explicitly stated they had no intention of staying in the U.S., but they apply for AOS soon after, USCIS may question their credibility. This can raise concerns about misrepresentation.
8. Should my parents leave the U.S. and apply through consular processing instead?
It depends. If there are concerns about misrepresentation, visa fraud, or prior immigration violations, consular processing may be a safer option. However, leaving the U.S. after accruing more than 180 days of unlawful presence can trigger a 3- or 10-year bar from returning.
9. Will my parents need a waiver if USCIS believes they misrepresented their intent?
Yes, if USCIS finds misrepresentation, your parents will likely need to file a Form I-601 Waiver for Inadmissibility. They must prove that denying them a green card would cause extreme hardship to their U.S. citizen child or another qualifying relative.
FINANCIAL & SPONSORSHIP QUESTIONS
10. What financial requirements must I meet to sponsor my parents?
As the petitioner, you must file Form I-864 (Affidavit of Support) and prove that your income is at least 125% of the Federal Poverty Guidelines. If your income is insufficient, you may use a joint sponsor.
11. What if my parents don’t have health insurance?
USCIS has previously considered public charge concerns, but currently, a lack of health insurance does not automatically disqualify applicants. However, having a plan for medical coverage can help strengthen their case.
UNEXPECTED ISSUES & UNIQUE SCENARIOS
12. My parents overstayed their visa but were admitted legally. Can they still adjust status?
Yes. Immediate relatives (parents, spouses, and children under 21 of U.S. citizens) are exempt from overstay penalties. Even if they overstayed, they can still adjust status as long as they entered legally.
13. My parents worked without authorization in the U.S. Will this affect their application?
Possibly. Unauthorized employment is generally a bar to AOS, but immediate relatives of U.S. citizens are exempt from this bar. However, it is still advisable to disclose all employment history truthfully on the application.
14. My parents’ I-94 expired. Can they still file for AOS?
Yes, as long as they entered legally. An expired I-94 alone does not disqualify immediate relatives from adjusting status.
15. My parents entered through the Visa Waiver Program (ESTA). Can they still adjust status?
Maybe. USCIS generally does not allow ESTA visitors to adjust status, but an exception exists for immediate relatives of U.S. citizens. However, these cases require careful handling.
PROCESSING TIME & EXPECTATIONS
16. How long does the AOS process take for parents of U.S. citizens?
Processing times vary by location but typically take 8-14 months. Factors that can delay processing include:
- Requests for Evidence (RFEs)
- Background checks & biometrics
- USCIS workload
17. Will my parents have to attend an interview?
Yes. Most AOS applicants are required to attend an interview at their local USCIS office.
18. What if my parents’ tourist visa expires while their AOS is pending?
No problem. Once Form I-485 is filed, your parents are legally allowed to stay in the U.S. until a decision is made.
Why You Should Consult with Attorney Richard T. Herman Before Filing for Adjustment of Status for Your Parents
Filing for Adjustment of Status (AOS) for your parents while they are visiting the U.S. on a B-2 tourist visa may seem like a straightforward process, but it carries significant legal risks, especially when considering the 90-day rule and USCIS’s scrutiny of preconceived intent. The wrong approach could result in denial of the green card application, accusations of fraud or misrepresentation, and even the possibility of deportation and future inadmissibility.
Before taking any steps, it is critical to assess the risks, weigh the best legal options, and ensure compliance with immigration laws. That’s why families turn to Attorney Richard T. Herman, a nationally recognized immigration lawyer with decades of experience helping families navigate the complexities of U.S. immigration law.
Why Risk It? Get a Professional Risk Assessment First
Every case is unique, and the stakes are high. Filing without a proper legal strategy can trigger serious immigration consequences. A consultation with Richard T. Herman ensures that you and your parents:
- Understand the Risks of the 90-Day Rule – USCIS may assume that your parents misrepresented their intent if they apply for AOS too soon. Learn how to strategically time their application to reduce risks.
- Avoid Accusations of Visa Fraud – A misstep in filing can lead to allegations of fraud or misrepresentation, which could bar your parents from future immigration benefits. Richard will help you build a strong case to prove their eligibility.
- Explore the Best Filing Strategy – Should your parents apply from within the U.S. or return to their home country for consular processing? Richard will assess the safest and most efficient pathway based on their specific situation.
- Handle Requests for Evidence (RFEs) & Interviews with Confidence – USCIS officers scrutinize AOS cases filed by B-2 visitors. Richard provides expert preparation for interviews and helps you respond to RFEs effectively.
- Prevent Costly Mistakes – Immigration laws are complex, and even small errors in an application can lead to denials and delays. Having an experienced attorney reduces the risk of application rejection.
- Peace of Mind – Immigration matters impact your entire family’s future. With Richard T. Herman by your side, you’ll have an experienced advocate guiding you every step of the way.
Take the Next Step – Schedule Your Consultation Today
Don’t gamble with your parents’ immigration status. Before filing any paperwork, get a comprehensive legal evaluation from an experienced immigration attorney who understands the risks and knows how to win cases.
📞 Call Richard T. Herman’s office today at 216-696-6170
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