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The “90 Day Rule” and Adjustment of Status

What is the “90 Day Rule”?

On September 1, 2017, the Trump administration amended the Department of State Foreign Affairs Manual to establish a “90 day rule.” The Foreign Affairs Manual is used for guidance by consular officers stationed at US consular posts abroad when making determinations about whether to issue a visa. Under the amended section 9 FAM 302.9-4(B)(3), the “90 day rule” states that any activity taken within the 90 day period that a person enters the United States on a nonimmigrant visa that is inconsistent with the purpose of that visa may be presumed to have made a willful misrepresentation when obtaining the visa.

The amended section of the Foreign Affairs Manual instructs consular officers that “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”

How the 90 Day Rule Affects Adjustment of Status

It is fairly common for a person to enter the United States on a nonimmigrant visa and adjust to permanent resident status. For example, to enter the United States on a tourist visa or on visa waiver and then adjust status. The adjustment could be through any means, such as a family or employment based petition. In order to adjust, the immigration officer must find that the immigrant is legally admissible to the United States. If an immigration officer determines that the immigrant made a willful misrepresentation when seeking a visa or entry to the United States, it will make the immigrant inadmissible to the United States.

We know that the question of whether you are ‘admissible’ does not seem to make sense in this situation. After all, you have already entered the United States and gone through customs, haven’t you already been admitted? The issue of whether the immigrant seeking to adjust status is admissible arises because of a more ‘technical’ legal aspect of the adjustment of status process. When an immigrant who came to the US on a nonimmigrant visa applies to adjust status and files form I-485 he is again considered to be making an ‘application for admission’ to the United States. Even though he is in the country, USCIS treats him as if he were outside and seeking entry.

This means that he will again be screened for grounds of inadmissibility. A person is inadmissible if they have committed immigration fraud. Under INA 212(a)(6)(C)(i) “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.” This new guidance from the US Department of States changes how consular officers are instructed to make a presumption that the intending immigrant has engaged in immigration fraud.

What is Inconsistent Conduct?

The Foreign Affairs Manual goes on to enumerate activities that, if taken within 90 days of entry, will create a presumption of a willful misrepresentation. Under 9 FAM 302.9-4(B)(3), “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.”

As you can see, the list of enumerated conduct that will create a presumption of misrepresentation if taken within the first 90 days of arrival is broad and includes some fairly common actions taken by an immigrant who enters the US on a nonimmigrant visa and applies for adjustment of status. For example, if an immigrant enters the US on a tourist visa and gets married within the first 90 days of entry, the Foreign Affairs Manual now states that consular officers may presume that the immigrant made a willful misrepresentation when obtaining the tourist visa.

Does the 90 Day Rule Even Apply to USCIS?

It is important to note that when applying for adjustment of status, the immigrant is not being interviewed by a consular officer. A consular officer is not deciding whether to approve or deny the petition. The 90 day rule change we are discussing here is part of the Foreign Affairs Manual, and it specifically applies to consular officers who adjudicate the issuance of visas at overseas US embassies. When you apply for adjustment of status, your case is decided by US Citizenship and Immigration Services. Thus, this change to the Foreign Affairs Manual does not directly apply to the agency that is adjudicating your petition.

The USCIS Policy Manual has not been updated to mirror the Foreign Affairs Manual and implement the 90 day rule. However, the 90 day rule as stated in the Foreign Affairs Manual can certainly be taken as guidance by the USCIS immigration officer charged with adjudicating your petition. It is entirely possible that the USCIS Policy Manual will be revised in the future to align with the Field Adjudicators Manual. If you plan to adjust status, or if you have already started the adjustment of status process, you should keep an eye on any changes to the USCIS Policy Manual so that you are fully aware of the guidance given directly to the immigrant officer adjudicating your petition.

Should You Still File for Adjustment of Status?

You should certainly be more careful, but adjustment of status will still be appropriate and safe in many cases. It is important to note that the Board of Immigration Appeals has established that when the adjustment of status is for an immediate relative, such as a spouse of a US citizen, “preconceived intent” is outweighed by the equity of the immediate relative relationship itself pursuant to Matter of Cavanos, 17 I. & N. Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981). In addition, the USCIS Policy Manual states that the Foreign Affairs Manual does not create “a ‘rule’ in the sense of a binding principle of decision. The rule is simply an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support of finding of fraud or misrepresentation. [USCIS] officers must not use Foreign Affairs Manual (FAM) guidance in a denial.”

Even before the Foreign Affairs Manual was updated to include the 90 day rule, our advice to clients petitioning for adjustment of status is to approach your case as if there is a presumption against you. It is, and always has been, your burden to prove that you are admissible, that you are in a bona fide marriage, or any other necessary element of obtaining lawful permanent resident status. If you did not have immigrant intent when you entered the US on a nonimmigrant visa such as a tourist visa, student visa, or on visa waiver, you should be prepared to prove this to the USCIS officer adjudicating your case. This advice holds irrespective of this recent update to the Field Adjudicators Manual.

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