30/60 Day Rule Is Now The 90-Day Rule

On September 16, 2017, the Department of State’s (DOS) Visa Office issued a cable providing guidance to U.S. embassies and consulates regarding the application of INA section 212(a)(7)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.”

What is the 30/60 day rule? As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under their issued non-immigrant visa. If you file your adjustment of status application within 30 days of last entering the United States, USCIS officers are trained to presume that you had preconceived intent to remain in the United States in violation of your non-immigrant visa. If you file the adjustment of status application more than 30 days but less than 60 days of entering the United States, USCIS will strongly suspect that you entered with preconceived intent. There is an exception to the 30/60 day rule for the immediate relatives of United States citizens but this is still risky territory.

The revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1, 2017. The guidance should not be applied retroactively. Non-immigrants who violate
or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by: 1) engaging in unauthorized employment; 2) enrolling in a course of unauthorized academic study; 3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or 4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation. Such a person can be barred from entering or residing in the United States, and subject to removal proceedings.

Therefore, it is critical to talk to an immigration attorney if you want to change your status, adjust your status, make a major life decision such as marry or live permanently in the United States,

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