When a foreigner wants to obtain a green card while being in the U.S., it may happen that he or she rushes things and apply their adjustment of status application before a certain period of time expires. Such practice can cause severe consequences, so it is essential to be informed about what you should and shouldn’t do while in the U.S. on most temporary visas and think it through before making any wrong steps that can cost you staying and living in the U.S.
Here we will discuss 90-day rule and some other information that will be helpful on your green card journey.
In any moment if you have questions and concerns, our experienced immigration attorneys will gladly help you! Contact us today and book your consutation.
Maintaining Nonimmigrant Status For Certain Visa Categories
Firstly, it is important to understand how U.S. immigration laws prevents misusing the immigration rights.
The U.S. Department of State made a change to its Foreign Affairs Manual by defining a tool for detecting potential misrepresentation. This change affects the process of inadmissibility evaluation in some instances.
The change included eliminating the previous rule by establishing a stricter standard known as the “90-day rule.” Using this rule, USCIS officials apply a presumption that a nonimmigrant visa holder made a willful misrepresentation at admission or application for a nonimmigrant visa when he or she enters the U.S. and within 90 days engages in conduct inconsistent with his or her nonimmigrant status. This rule became effective in September 2017, replacing the older 30/60-day rule. An immigration officer has the authority to approve or deny visas and will evaluate any potentially inconsistent conduct within the first 90 days of entry.
If you are on your way to applying for a green card from the United States or changing and adjusting your temporary residency status, it is essential to get the correct information about the 90-days rule and how USCIS officials may use it to decide on your inadmissibility.
The Short Nonimmigrant Intent Explainer
When applying for most nonimmigrant visas, the applicant must prove that he or she plans to return to the home country upon the trip’s purpose is completed.
Temporary visa categories are B, F, J, M, Q, TN, and visa waiver program visitors. Those visas have short-term activities, such as tourism, business, education, and some temporary employment. TN visa holders, like those in other single-intent categories, must demonstrate their intent to leave the U.S. after a temporary stay.
‘Nonimmigrant intent’ means that the visa holder did not plan to stay permanently in the U.S., so he or she only needed the temporary visa when entering the U.S. The U.S. immigration law recognizes a presumption of immigrant intent and imposes the burden of proof on nonimmigrant visa applicants. They have to prove nonimmigrant intent and that they have sufficient ties to their home country (financial ties, immediate relatives, etc) to compel them to leave the U.S. and not abandon their residence abroad.
Applying for the Marriage Green Card
If you recently married a green card holder or a U.S. citizen, do not rush to adjust your status because, as we said previously, the U.S. Citizenship and Immigration Services (USCIS) designed the 90-day rule to stop people from using temporary use visas for unintended purposes. In the green card process, your application will be intensely scrutinized.
What is the 90-day rule?
The 90-day rule refers to a presumption that a nonimmigrant visa holder made a willful misrepresentation at admission or application for a nonimmigrant visa when that nonimmigrant enters the U.S. and within 90 days engages in conduct that is not allowed with their nonimmigrant status.
Honesty during the visa application process is crucial, as misrepresentation can have serious consequences for future immigration benefits.
The Policy Manual that was changed in 2018 indicates that the 90-day rule is not binding on USCIS but it helps officers to evaluate cases and determine whether the green card applicant applying from within the U.S. misled government officers when granted a visa or admitted to the country.
Can You Still Convince Immigration Official if You Adjust Status Before 90 day Period Expires?
Visa holders who filed their application within 90 days may still convince USCIS officers that their original intent was genuine. Officers will consider whether the applicant originally intended to leave the U.S. or remain, based on the circumstances and evidence provided.
This will especially be the case for applicants whose personal or professional situation changes significantly and unexpectedly during their first 90 days. But, remember that proving nonimmigrant intent is not easy, so it’s highly advisable to avoid any conducts that could raise officers’ concerns over the 90-day rule.
90-day rule vs. the 30/60-day rule
Before Policy Manual changes, USCIS used a “30/60 rule” to evaluate an applicant’s non-immigrant intent.
Adjusting Status Within 30 Days
Applicants who wants to adjust his or her nonimmigrant status within 30 days of entering the U.S. were presumed to involve misrepresentation of purpose, and often, they were denied.
Adjusting Status Between 30 and 60 Days
Applicants who filed their applicaions for adjustment of status between 30 and 60 days of entering the U.S. immigration officials found suspicious, but their applications were not necessarily disqualified. Applicants who waited at least 60 days after entering the United States to file their adjustment of status applications were generally not problematic.
What Has Changed For Green Card Applicants?
The current 90-day rule, which is stricter than the 30/60, applies to all applicants. USCIS officers will find that applicants misrepresent their original intentions in case they marry a U.S. citizen or lawful permanent resident or apply for an immigrant visa within 90 days of entering the U.S. if they cannot prove otherwise.
Also, the 90-day rule means that foreigners admitted to the U.S. for up to three months, such as many visa-waiver program users, have limited scope to adjust permanent resident status without triggering the 90-day rule. Other visa waiver programs also allow short-term visits for purposes such as tourism, education, or temporary work, and it is important to maintain nonimmigrant intent when using these categories.
Who the 90-Day Rule Affects?
The 90-day rule applies to all non immigrant visa holders who entered the U.S. to stay temporarily. This includes those with a non immigrant visa, such as a B-2 (tourist visa). However, it does not apply to those holding dual intent visas like H-1B or L-1 visas.
The 90-day rule doesn’t apply to those holding a dual intent visa (H, L visas).
During the first 90 days upon entering the U.S., a “single-intent” visa holder (such as someone on a B-2 tourist visa) cannot:
- Engage in unauthorized employment
- Enroll in an unauthorized course of study (without a proper student visa)
- Enter into a marriage with a U.S. citizen or green card holder
- File an “adjustment of status” application (Form I-485)
If a visa holder engages in any of these activities within the first 90 days, it may be considered a violation of their non immigrant visa status. Additionally, K-1 fiancé visa holders must marry their U.S. citizen petitioner within 90 days to proceed with their green card application.
If non immigrant visa holders take any of these actions within 90 days after entering the U.S., government officers could determine they misrepresented the original intent if specific evidence arises during their application process. Actions that may trigger the presumption of misrepresentation include applying for a green card, engaging in unauthorized employment, or enrolling in an academic course without the proper visa. If you mention during the visa interview that you originally came to the U.S. intending to remain, you could face problems even if you were married or applied for a green card more than 90 days after you entered the country.
You can refer to your I-94 arrival/departure record to determine your entry date. The 90-day rule applies to your most recent entry to the U.S. If you have multiple I-94 forms or multiple entries, always refer to that most recent entry.
How it Affects Dual intent visas?
Like the H-1B or L-1 work visas, some U.S. visas are known as “dual intent.” Dual intent means the visa holder can use the visa while simultaneously planning to relocate permanently to the U.S.
Dual intent visa holders don’t need to worry about the 90-day rule.
People holding “single intent” visas and those using the Visa Waiver Program / ESTA — aren’t allowed to come and remain permanently in the U.S. So, by marrying or applying for a green card, they risk being found to have misrepresented their original intent. Travelers on single-intent visas, like B-1 (business) and B-2 (tourist), are most affected by the 90-day rule.
Crucially, “single intent” visa-holders can change their minds once they’re in the U.S. and marry or apply for a green card. Since they came to the U.S. to stay temporary and according to their status, they were granted a certain visa. But, now their intention to apply to become lawful permanent residents raises questions and, most importantly, the government’s concern about whether an applicant initially intended to leave or not.
To tackle this problem, United States Citizenship and Immigration Services USCIS designed the 90-day rule, stating that temporary visa holders who marry a United States citizen or a lawful permanent resident or apply for a green card within 90 days upon arrival in the U.S. will be presumed to have violated the terms of a nonimmigrant visa. Misrepresentation under the 90-day rule can result in a lifetime ban from entering the United States.
How to count 90 days?
When thinking of applying the 90-day rule to your situation, you need to know how many days you have already spent in the U.S. To figure this out, you should look at the most recent entry date from your I-94 travel record (the “Form I-94 Arrival/Departure Record”).
On this date, you should add 90 days, and you will gate the date, which is the last one counted in the application of 90 days rule to your entry.
How does It Affect Repeated Entries?
This rule applies to your most recent entry only. If you stay more than 90 days on one stay, leave the U.S. and then return, this action will reset the “90 day clock.”
You have to wait for 90 days to avoid breaking the rule before applying for an adjustment of status application or before marrying a green card holder or a U.S. citizen.
How does the It Affect Multiple Visas Holders?
Again, the 90-day rule will be applicable only to your most recent visa. So, if you visited the U.S on a H-1B visa and later left and returned using the single-intent Visa Waiver Programs, only the most recent entry and visa status would be considered.
What To Expect If You Break The 90-day Rule
Immigration officials are not obliged to follow this rule strictly. Instead, it only serves as guidance for government officers when assessing visa applications. As we stressed out thought this article, USCIS officers use the 90-day rule to determine whether the applicant misrepresented the original intent when first seeking a visa and traveling to the U.S.
Immigration officers are responsible for assessing the applicant’s honesty, conduct, and compliance with visa terms to determine admissibility and immigration status.
Even though in theory you could convince the officer by presenting evidence to the contrary, it is essential to have this in mind and restrain from doing any activities that USCIS officers may find suspicious. If you are a single-intent visa holder and got married or filed a green card application within 90 days upon entering the U.S., the USCIS officer who reviews your case will presume that you did not enter the U.S. for reasons you initially claimed. The U.S. government takes these perceived deceptions very seriously: your green card application will probably be denied. Moreover, it also can affect your existing visa, which could be revoked.
Beyond the 90-day period, immigration officers may rely on reasonable belief to challenge an applicant’s intentions, even if no formal presumption of fraud exists.
Common Immigration Mistakes to Avoid
Navigating the U.S. immigration process can be overwhelming, and even small missteps can have serious consequences for your visa status or future as a lawful permanent resident. One of the most important concepts to understand is the 90 day rule, which applies to nonimmigrant visa holders who engage in conduct inconsistent with their nonimmigrant status within 90 days of their most recent entry to the United States. Violating this rule can lead to allegations of visa fraud, denial of adjustment of status, or even revocation of your existing visa.
A frequent source of confusion is the difference between dual intent visas and single intent visas. Dual intent visas, such as H-1B and L-1, allow visa holders to enter the U.S. temporarily while also having the option to pursue permanent resident status. In contrast, most nonimmigrant visas—including B, F, J, M, Q, and TN visas, as well as those entering under the visa waiver program—require you to prove nonimmigrant intent. This means you must demonstrate to consular officers during your visa interview that you plan to return to your home country after your temporary stay, often by showing strong financial ties, such as bank accounts, employment, or property.
One of the most common mistakes nonimmigrant visa holders make is engaging in unauthorized employment or enrolling in school without the proper visa category. Such actions are considered conduct inconsistent with your nonimmigrant status and can trigger the 90 day rule, raising suspicions of immigrant intent. It’s essential to fully understand the terms and conditions of your nonimmigrant visa and avoid any activities that could be interpreted as a violation of your status.
Another pitfall is failing to keep accurate records of your entry and exit dates. The 90 day rule is calculated from your most recent entry date, as recorded on your Form I-94 Arrival/Departure Record. If you have multiple visas or have entered the U.S. several times, remember that the rule applies to your most recent visa and entry. Holding multiple visas does not exempt you from compliance with the 90 day rule or other immigration laws.
To avoid these and other common mistakes, always provide honest and thorough information during your visa interview, maintain documentation of your financial ties to your home country, and consult with an experienced immigration attorney if you are unsure about your status or eligibility for adjustment of status. By understanding the 90 day rule, the difference between dual intent and single intent visas, and the importance of proving nonimmigrant intent, you can protect your nonimmigrant status and move forward confidently on your path to becoming a permanent resident or United States citizen.
Why You Should Hire Richard Herman Today
When you need help with filing an adjustment status application, preparing different kinds of immigration forms, or dealing with different complex scenarios on your immigration journey, you need the legal services of an experienced immigration attorney. Consultation with an immigration attorney is advisable if there are concerns about the implications of the 90-day rule.
Any mistake and breach of immigration law can affect your petition on a case-by-case basis and prevent you from getting a green card.
Herman Legal Group has over 26 years of experience with the most experienced immigration attorneys who offer quality immigration services.
You can schedule a consultation with us via Skype, Zoom, WhatsApp, or Facetime, or you can decide to visit our worksite location to discuss your case. You can contact us via +1-800-808-4013 or +1-216-696-6170. If you prefer to speak with Richard Herman, you can also book your consultation online.
GOVERNMENT RESOURCES
Quick note: The “90-day rule” appears in the U.S. Department of State’s Foreign Affairs Manual (9 FAM 302.9) as consular guidance about inconsistent conduct within 90 days of entry and potential misrepresentation under INA § 212(a)(6)(C)(i). USCIS does not have a separate “90-day rule”, but it does assess fraud/willful misrepresentation under the statute and Policy Manual using a totality-of-the-evidence approach.
- INA § 212(a)(6)(C)(i) — Fraud & Willful Misrepresentation (Inadmissibility)
Statutory ground used when conduct suggests misrepresentation of intent at entry.
Read the statute (U.S. Code/GovInfo) - DOS 9 FAM 302.9 — Grounds of Inadmissibility: Misrepresentation (includes the “90-day rule”)
Consular guidance on inconsistent conduct after entry and how to assess potential misrepresentation.
9 FAM 302.9 (Foreign Affairs Manual) - USCIS Policy Manual — Volume 8, Part J (Fraud and Willful Misrepresentation)
USCIS’s adjudication framework for INA 212(a)(6)(C)(i) determinations in benefits cases.
USCIS PM: Vol. 8, Part J - USCIS Policy Manual — Volume 7 (Adjustment of Status), esp. eligibility/bars & intent
How USCIS evaluates Adjustment of Status (AOS), including admissibility and documentary requirements.
USCIS PM: Vol. 7 (Adjustment of Status)
- Change My Nonimmigrant Status (Form I-539)
Steps and eligibility to change status inside the U.S. after entry (e.g., B-2 → F-1).
USCIS: Change My Nonimmigrant Status - Adjustment of Status (Form I-485)
Overview of AOS for those seeking permanent residence from inside the U.S.
USCIS: Adjustment of Status - Advance Parole (Form I-131) — Travel While AOS Is Pending
Travel permission while an AOS application is pending to avoid abandonment.
USCIS: Form I-131 - Employment Authorization (Form I-765) — While AOS Pending
Apply for a work permit during the AOS process.
USCIS: Form I-765 - I-94 Admission Record (CBP)
Retrieve entry record; often relevant to proving lawful admission and timing of post-entry conduct.
CBP: Get Your I-94
- 9 FAM 302.9 (Detailed) — Misrepresentation & “Inconsistent Conduct”Full DOS guidance that includes the 90-day rule framework for post-entry activity. 9 FAM 302.9 (DOS)
- Visitor (B-1/B-2) Visa Overview — Temporary IntentDOS overview of visitor visas, emphasizing nonimmigrant intent at entry. A consular officer conducts the visa interview and assesses the applicant’s eligibility based on their responses regarding nonimmigrant intent and ties to their home country. DOS: Visitor Visas (B-1/B-2)
- U.S. Embassy/Consulate DirectoryCountry-specific instructions (documents, interviews) if consular issues arise. Find a U.S. Embassy/Consulate
Admissibility, Waivers, and Case Problem-Solving
- Waiver of Inadmissibility (Form I-601)
If a 212(a)(6)(C)(i) finding is made, certain applicants may seek a discretionary waiver.
USCIS: Form I-601 - USCIS Case Status (Receipt Lookup)
Track benefit cases (AOS/I-539/I-130) as timing relates to post-entry conduct.
USCIS: Check Case Status - USCIS Processing Times
Monitor adjudication timeframes; useful context when analyzing conduct and timing.
USCIS: Processing Times - USCIS Expedite Criteria
Standards for considering an expedite request (limited, discretionary).
USCIS: How to Make an Expedite Request - DHS CIS Ombudsman — Case Assistance
Independent help channel for case delays or process issues.
CIS Ombudsman - USCIS FOIA — Get Your File
Obtain records to evaluate historical entries, filings, and misrepresentation findings.
USCIS: FOIA Request
Professional Associations & Trusted Nonprofits (Education & Practice)
These organizations publish practice advisories and explainers that help interpret the 90-day rule, misrepresentation standards, and strategic considerations around post-entry conduct and benefits filings.
- American Immigration Lawyers Association (AILA) — Practice advisories, liaison updates, and policy analysis (member resources).
AILA - American Immigration Council — Research and litigation resources on inadmissibility, misrepresentation, and agency practices.
American Immigration Council - CLINIC (Catholic Legal Immigration Network, Inc.) — Family-based and humanitarian practice materials, community education.
CLINIC - Immigrant Legal Resource Center (ILRC) — Practical guides on admissibility, AOS strategy, and waivers.
ILRC - National Immigration Law Center (NILC) — Policy and community resources affecting nonimmigrants and status-related issues.
NILC - ABA Commission on Immigration — Legal resources, policy analysis, and pro bono directories.
ABA Commission on Immigration
Mini-Index (Task-Focused)
- Law & Guidance:
INA 212(a)(6)(C)(i) → GovInfo U.S. Code Collection
“90-day rule” in DOS guidance → 9 FAM 302.9 (Misrepresentation)
USCIS Fraud/Misrepresentation Policy → Policy Manual Vol. 8, Part J - Process Pages:
Change Status (I-539) → USCIS: Change My Nonimmigrant Status
Adjust Status (I-485) → USCIS: Adjustment of Status - B-1/B-2 Intent Basics → DOS Visitor Visas
- Records & Timing:
I-94 Record → CBP I-94
Case Status → USCIS Status Lookup
Processing Times → USCIS Timelines - Problem-Solving:
Expedite Criteria → https://www.uscis.gov/forms/filing-guidance/expedite-requests - Ombudsman Help → CIS Ombudsman
FOIA Your File → https://www.uscis.gov/records/request-records-through-the-freedom-of-information-act-or-privacy-act
