For a brief refresh, this post will be dedicated to better understanding tor 90 day rule in U.S. immigration. In general, the 90 day rule applies to mainly non-immigrants, meaning those who have relocated to the United States temporarily for employment or graduate studies as a PhD student. The 90 day rule does not apply to H1-B holders, because although this is a non-immigrant visa, it is a dual intent visa also. The same goes for L-1 visa holders (Intracompany transfers).
The 90-day rule mainly applies to non-immigrants who violate, or engage in conduct that is inconsistent with their existing status, within the first 90 days of residing in the United States. Inconsistent behavior generally refers to non-immigrants who file a green card application within 90 days of being in the United States or getting married to a U.S. citizen, which the USCIS might be suspicious of because of the benefits of marrying a U.S. citizen.[1]
Here are important concerns to be aware of as it relates to the multifaceted 90 day rule:
- The State Department updated its guidance o the 90 day rule in 2018. As such, USCIS officers use the 90 day rule and it is currently in effect in terms of the USCIS policy manual. However, it is important to stress that the 90 day rule is no more than, “…an analytic tool for consular officers, not a binding principle or decision. Furthermore, the manual clarifies that the rule is not binding on USCIS.”[2]
- Secondly, the 90 day rule, as mentioned above does not simply just apply to non-immigrants filing for a green card immediately after they land in the United States. It could also be the case that a temporary visa holder takes up unauthorized work in the U.S. shortly after arriving. The issue with starting up work on a temporary visa is that it sends a signal to the USCIS that you are misrepresenting your true intentions of coming to the U.S. Therefore you have violated the terms of your visa by doing so.
- Marrying before the 90 day mark also sends a red flag to the USCIS. If you think about it, how can you even develop a firm relationship with a partner in less than 90 days. That is less than three months of total time together. In this case, the USCIS will press both marital partners to disclose important milestones in their relationship and also the evidence of shared resources and finances. Chances are that if you have married within 90 days, you won’t have enough supporting evidence anyways to file for an adjustment of status.
In addition, if you are thinking about getting married or filing for a green card and are worried about the 90 day rule, make sure you are at least counting the days correctly. The USCIS uses the entry date on your CBP I-94 record. 90 days means adding 90 days from that mark.
