What is the 90-day rule and why does it exist?  Who is implicated by this rule?

The 90-day rule is applied by immigration officials in evaluating inadmissibility for fraud pursuant to INA § 212(a)(6)(C)(i). Under this section of the Immigration and Nationality Act (INA), a foreign national who willfully misrepresents a material fact in order to obtain a visa or other documentation, admission to the United States, or any immigration benefit is inadmissible.

The 90-day rule subjects a nonimmigrant to a presumption of having made a willful material misrepresentation of his or her intentions at the time of admission or application for a nonimmigrant visa when that nonimmigrant enters the United States and within 90 days, engages in conduct inconsistent with his or her nonimmigrant status.

Nonimmigrant visa recipients generally have a temporary or short-term purpose for entering the United States such as for tourism, just to visit, for business, to work, or to study.  These purposes are all temporary reasons for one's entry into the United States so these visas are thus called nonimmigrant visas signifying very clear nonimmigrant intentions.

The government's purpose for having such a rule is to prevent suspicions and violations within the immigration system.

What is considered inconsistent conduct?

For the purpose of applying the 90-day rule, the rule covers any conduct that violates or is inconsistent with an applicant’s nonimmigrant status depending on the nonimmigrant status of the applicant and the activities of the applicant in such status, including, but not limited to:

  • Engaging in unauthorized employment or working without authorization while on B1/B2 nonimmigrant status;
  • Enrolling in a course of study when academic studies are not authorized by one’s nonimmigrant status;
  • Marrying a U.S. Citizen (USC) or Lawful Permanent Resident (LPR) and taking up residence in the United States when one is in B or F status;
  • Undertaking any other activity for which a change of status or adjustment of status would be required, without officially changing or adjusting status.

If these events take place within the first 90 days of a person's last entry into the United States, immigration officials may be suspicious and presume misrepresentation or fraud regarding that applicant's original intent, and the applicant should be prepared to explain why the decision to work or marry arose only after he or she entered the United States based on new circumstances.

What is taking up residence?

To establish that an applicant took up residence in the United States before/after marrying a USC or LPR, immigration officials may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicants’ name, whether the applicant obtained a local driver’s license and any other evidence that may support a finding that the applicant took up residence in the United States.

If you get married to a USC or LPR and then file an application for Adjustment of Status (AOS), it appears as though your intent is no longer temporary, but permanent with regards to your reason for physical presence in the United States.  Therefore, it is a violation of the nonimmigrant visa and your original intentions. 

How to avoid problems with the 90-day rule?

Wait a 90 day period after entry to the United States with the nonimmigrant visa and then get married and start gathering evidence of the marriage once that period has passed.  If you are questioned by an immigration official, you can demonstrate a nonimmigrant intent by presenting proof of things such as having a residence abroad in another country and having no intention of abandoning that residence and proving intent to depart the United States upon termination of the conditions under the nonimmigrant visa.

How rigorously is this rule followed by immigration officials?

VERY rigorously.  Any suspicions related to misrepresentation or fraud during the immigration process are investigated and analyzed very seriously and thoroughly by immigration authorities.  So be aware and proceed with caution.  

What are the consequences of failing to follow the 90-day rule?

You could lose your visa status by revocation OR your immigration applications can be denied or rejected if the presumption of misrepresentation or fraud exists in some manner.  If you cannot prove otherwise, then you may become inadmissible for a green card or even permanently barred from reentering the U.S.

What are the exceptions, if any, to the 90-day rule?

As an exception to the rule, immediate relatives of U.S. citizens are exempt from the impression of misrepresentation implicated by the 90-day rule.  If you have a “dual intent” visa such as an H-1B or L-1 work visa, then the 90-day rule does not apply to you.

Are there any waivers for the violation of the 90-day rule?

Under INA § 212(a)(6)(C)(i), a foreign national who willfully misrepresents a material fact in order to obtain a visa or other documentation, admission to the United States, or any immigration benefit is inadmissible. While this ground of inadmissibility is waivable, a waiver is only available to an applicant who can demonstrate that his or her USC or LPR Spouse or Parent will suffer extreme hardship if the immigrant visa is denied.

Inconsistent Conduct after 90 days

If an applicant violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after admission to the United States, NO automatic presumption of willful misrepresentation arises.

Attorneys are advising clients to avoid marriage and the adjustment process within at least the first three months of entering the U.S.  If you are worried that this rule applies to you in some manner, then it is important to consult with an experienced Immigration Attorney about your specific situation or circumstance.  


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