What Is the 90-Day Rule?

The U.S. Department of State (DOS) and USCIS previously operated under a “30/60 Day Rule” by which adjudicators made an initial assessment as to whether a foreign national misrepresented a material fact in order to obtain a visa or some other type of immigration benefit.  If so, the foreign national is generally inadmissible without a waiver. Under the old rule, if the foreign national engaged in certain activities inconsistent with his or her nonimmigrant visa within 30 days of entry (e.g., entering on a tourist visa, but then getting married), a presumption arose that he or she misrepresented his or her intentions when he or she applied for the nonimmigrant visa. If the activity occurred between 30 and 60 days of arrival, it could prove the basis for the adjudicator to have a “reasonable belief” that misrepresentation occurred.

In September 2017, DOS replaced the 30/60 Day Rule with a 90-Day Rule.  Essentially, if the inconsistent activity occurs within 90 days of arrival, there is a rebuttable presumption that a misrepresentation occurred. If the inconsistent activity occurs more than 90 days after arrival, then an adjudicator may still consider the conduct if it gives rise to a “reasonable belief” that the individual misrepresented himself or herself in obtaining the visa or at the time of admission.

On May 15, 2018, USCIS updated its Policy Manual to include reference to the 90-Day Rule, as well, though it expressly notes that the 90-Day Rule is merely an analytical tool and is not binding on USCIS. Regardless, if a foreign national has taken some action that seems inconsistent with the purpose of his or her nonimmigrant visa, he or she should be prepared to face additional scrutiny.

Even if an adjudicator determines that a misrepresentation has occurred, a waiver may be available. Likewise, legal precedent exists that may protect immediate relatives in such a situation without the need for a waiver, provided that the adjudicator’s only basis for denial of the requested benefit was the purported misrepresentation.

If you believe you may have taken an action inconsistent with the purpose of your nonimmigrant visa, seek experienced immigration counsel for advice.

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