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Does the 90-day rule apply to adjustment of status cases?

Jul 8, 2018

Anjana Prasad, Esq. Senior Advisor, Immigration Law

Dear Anjana,

Does the new 90-day rule apply to “adjustment of status” cases?

Green Card Hopeful

Dear Green Card Hopeful,

It’s not uncommon for temporary visitors in the United States to change their original plans — if they fall in love with a U.S. citizen or permanent resident, for example. But before you rush to file your green card application, here’s what you should know:

Filing an “Adjustment of Status” application (Form I-485) within 90 days of arriving in the United States on a temporary visa — such as B, F, and J visas — is indeed among the violations subject to the 90-day rule implemented in September 2017.

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In other words, if you apply for a green card (permanent residence) while physically present in the United States during your first 90 days here, the U.S. government will presume that you “willfully misrepresented” your intentions for coming — that is, that you originally had no intention of returning to your home country before your temporary visa expired.

You may still be able to convince the U.S. government that you intended to honor the terms of your visa, however, but you’ll be facing an uphill battle. To disprove “willful misrepresentation” on your part, you’ll need to submit compelling evidence to the contrary. Suppose, for instance, that you intended to visit your spouse in the United States for a couple of months, but your spouse fell seriously ill. You’ll need to explain at your green card interview that this is why you decided to stay in the United States. Otherwise, your green card application may be denied, or your temporary visa may be revoked.

The best way to avoid triggering the 90-day rule, of course, is to wait until after 90 days have passed since you arrived as a temporary visitor in the United States before applying to “adjust your status” to permanent residence. But waiting doesn’t guarantee success. Check out this detailed guide to visiting your spouse in the United States.

With Boundless, an independent immigration attorney can answer all of your questions in much more detail, including those about adjustment of status rules.



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