The Intricacies of the 90-Day Rule and the Adjustment-of-Status Process

An Explanation of the 90-Day Rule

The 90 day rule came into existence on September 1,2017. It is an amendment to the Department of State Foreign Affairs Manual that was orchestrated by the Trump administration. The manual serves as a guide to consular officers in their decisions regarding the issuance of a visa. Consular officers are assigned to United States consular posts overseas.

Section 9 FAM 302.9 – 4(B)(3) notes that any individual who enters the United States on a non-immigrant visa and partakes in any activity that conflicts with the purpose of that visa during that 90-day window, may be seen as having intentionally misrepresented their reasons for obtaining the visa.

The amendment found in the Foreign Affairs Manual gives consular officers a certain authority. They have the right to make the presumption that your statements regarding performing activities that are compliant with your immigration status were on purposely misrepresented.

In other words, you essentially lied about your intentions for seeking a visa or entrance into the United States. However, this presumption cannot come to fruition unless you indulge in behavior that contradicts your non-immigrant status within 90 days of your arrival in the United States.

The Intertwining of the 90-Day Rule and the Adjustment-of-Status Procedure

You can gain entrance into the United States on a non-immigrant visa, and then adjust your status to reflect permanent residency. In other words, if you were to enter the United States on a visa waiver or visa, you would just need to change your status to a permanent resident.

Such an adjustment could be achieved in various ways. For example, you could apply based on your employment or family. Your adjustment depends upon whether the immigration officer determines that you are legally admissible into the United States. However, you would be deemed inadmissible if it were determined that you on purposely misrepresented your intentions for seeking a visa.

At this point, it may seem odd that your admissibility would play a role in this situation. Given the fact that you are already physically in the United States and have successfully passed through customs, there should not be an issue with your admittance. However, the problem lies with the adjustment-of-status procedure itself. A technicality exists within the process. It works like this. You are in the United States on a non-immigrant visa.

Then, you decide to apply to adjust your status. In order to do so, you must file Form I-485. By submitting this form, you are essentially applying for admission into the United States, again. Although you are already in the United States, the U. S. Citizenship and Immigration Services (USCIS) views you as if you were freshly seeking entrance.

As such, you are now opened, again, to the inadmissibility procedure. As a reminder, you will be inadmissible if fraudulent immigration has been committed. As noted in Act INA 212(a)(6)(C)(i), if you deliberately misrepresent an important fact during the acquisition of a visa, or while attempting to obtain admission into the United States, or while securing any other benefit or documentation specified in this act, then you will be inadmissible. With this new directive provided by the U. S. Department of State, consular officers must now operate under the premise that fraudulent immigration has occurred.

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