The 90-Day Rule is a guideline used by the United States Citizenship and Immigration Services (USCIS) to assess the intent of individuals who enter the U.S. on a nonimmigrant visa and subsequently apply for Adjustment of Status (AOS) to become a permanent resident.
The rule states that if an individual enters the U.S. on a nonimmigrant visa, such as a tourist visa (B-2), and marries a U.S. citizen or applies for a green card through family sponsorship within 90 days of entry, there is a presumption of willful misrepresentation of intent. This means that the USCIS may presume that the individual entered the U.S. with the intention of getting married or applying for a green card, even if they initially claimed a different purpose for their visit.
If an individual violates the 90-Day Rule, it doesn’t necessarily mean that their Adjustment of Status application will be denied. However, it does create a presumption that must be overcome during the application process. The burden of proof is on the applicant to demonstrate that their original intent when entering the U.S. was lawful, and they did not have preconceived plans to marry or apply for a green card.
It’s important to note that the 90-Day Rule is a guideline and not a strict legal requirement. USCIS officers have discretion in evaluating each case on an individual basis, taking into account the specific facts and circumstances.
If you are considering applying for Adjustment of Status after entering the U.S. on a nonimmigrant visa, it’s crucial to consult with an immigration attorney to ensure you understand the rules and requirements specific to your situation and to navigate the application process successfully. Laws and policies can change, so it’s essential to seek advice based on the most up-to-date information available.
Adjustment of Status (AOS)
Adjustment of Status (AOS) is the process by which certain foreign nationals who are in the United States can apply to change their nonimmigrant status to that of a lawful permanent resident (green card holder). AOS is typically used by individuals who are already in the U.S. and wish to obtain permanent resident status without having to leave the country to apply for an immigrant visa at a U.S. consulate abroad.
Here are key points about the Adjustment of Status process:
- Eligibility:
- Eligibility for AOS depends on various factors, such as the type of visa the individual holds, the basis for eligibility (e.g., family-sponsored, employment-based, refugee/asylee), and compliance with immigration laws.
- Petition:
- A family member or employer typically initiates the process by filing an immigrant petition on behalf of the foreign national. This petition establishes the qualifying relationship or employment.
- Priority Dates:
- In family-sponsored and employment-based categories, there is often a waiting period due to numerical limits on immigrant visas. Applicants are assigned a priority date based on the filing of the petition.
- Visa Bulletin:
- The U.S. Department of State publishes a monthly Visa Bulletin that indicates the availability of immigrant visas for each category and country of chargeability. The priority date must be current for the applicant to move forward in the process.
- Form I-485, Application to Register Permanent Residence or Adjust Status:
- Once the priority date is current, the applicant can file Form I-485 with USCIS. This form is the actual application for adjustment of status.
- Biometrics and Interviews:
- USCIS may require applicants to attend biometrics appointments to provide fingerprints and photographs. Additionally, an in-person interview may be scheduled to evaluate the applicant’s eligibility and admissibility.
- Decision:
- USCIS will make a decision on the Adjustment of Status application. If approved, the individual becomes a lawful permanent resident and receives a green card.
- Conditional Permanent Residence (if applicable):
- In some cases, individuals may receive conditional permanent residence, which is valid for two years. Conditional residents must later file a petition to remove conditions within the 90 days before the card expires.
It’s crucial to carefully follow the application process, adhere to the required timelines, and provide accurate and complete documentation. Consulting with an immigration attorney can help ensure a smooth and successful Adjustment of Status process.
Form I-485 Checklist of Required Documents
The required documents for Form I-485, Application to Register Permanent Residence or Adjust Status, can vary depending on the specific circumstances of the applicant, such as the basis for eligibility (family-sponsored, employment-based, refugee/asylee) and any additional factors. USCIS may also update requirements, so it’s essential to check the USCIS website or consult with an immigration attorney for the most up-to-date information. However, here is a general Form I-485 checklist of common documents often required:
- Form I-485, Application to Register Permanent Residence or Adjust Status:
- Complete and signed by the applicant.
- Filing Fee:
- Include the appropriate filing fee or request a fee waiver if eligible.
- Passport Photos:
- Provide passport-style photos of the applicant as per USCIS specifications.
- Copy of Passport:
- Include a copy of the biographical page of the applicant’s passport.
- Copy of Birth Certificate:
- Provide a copy of the applicant’s birth certificate.
- Copy of Visa and I-94:
- Include copies of the visa stamp and the most recent Form I-94, Arrival/Departure Record.
- Marriage Certificate or Birth Certificate (if applicable):
- If applying as a family-sponsored applicant, include a copy of the marriage certificate (for spouses) or birth certificate (for children).
- Form I-864, Affidavit of Support:
- If required, include the Form I-864 submitted by the sponsor (for family-sponsored applicants).
- Form I-693, Report of Medical Examination and Vaccination Record:
- A completed and sealed medical examination report by an authorized USCIS civil surgeon.
- Form I-765, Application for Employment Authorization (optional):
- If the applicant wishes to apply for work authorization while the I-485 is pending.
- Form I-131, Application for Travel Document (optional):
- If the applicant wishes to apply for a travel document (advance parole) to travel outside the U.S. while the I-485 is pending.
- Proof of Eligibility:
- Provide evidence supporting the basis for eligibility (e.g., family relationship, employment offer).
- Police Clearances:
- Provide police clearance certificates from all countries where the applicant has lived for more than six months since turning 16.
- Affidavit of Support Documents (if applicable):
- Include financial documents supporting the sponsor’s ability to financially support the applicant.
