Immigration’s 90 Day Rule: A new change making harsher consequences

In September 2017, the Department of State redefined their policy in finding “Visa Fraud” and “Immigrant Intent.” The 30/60 Day Rule (also known as the 30/60/90 Day Rule) has been superseded by the 90 Day Rule.

9 FAM 302.9-4 reviews Inconsistent Conduct Within 90 Days of Entry:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, you may presume that the applicant’s performed willful misrepresentations of his or her intention in seeking a visa or entry.

For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

  1. Engaging in unauthorized employment;
  2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
  3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  4. Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

What happens After 90 Days? 

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, no presumption of willful misrepresentation arises.  However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an Advisory Opinion.

This is a DOS Rule, what does uscis think?

Even though this is a DOL Rule, USCIS may still rely on this basis for determining Visa Fraud and Immigrant Intent. If someone is filing for Adjustment of Status, it is a wise idea to consider the four above violations and inconsistent actions prior to filing. If USCIS finds Visa Fraud or inadmissibility from Immigrant Intent, then the I-485 Adjust of Status filing will either require the I-601 waiver or be denied.


Fickey Martinez Law Firm, P.L.L.C. is an immigration and naturalization law firm serving Eastern North Carolina. We strive to make sure you understand the immigration laws that pertain to your specific circumstances. We frequently file with USCIS, NVC and DOS, and we can use this experience to better serve you.

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