What is the 30/60 Rule for Adjustment of Status?
Many people come to the United States legally on nonimmigrant visas for tourism or family visits, for example. Once a person is in the United States, they may decide to apply for a Green Card to become a lawful permanent resident. If they are eligible, they will file for an adjustment of status. Filing quickly—within 30, 60 or, now, 90 days of arrival in the U.S.—may raise questions about the person’s original intent in coming to the U.S. on a nonimmigrant visa. In the past, USCIS relied on the 30/60 Rule to determine whether an individual was guilty of misrepresentation. However, more recent guidance extends those time frames to 90 days.
What do the 30/60 Rule and the new 90-day rule mean for nonimmigrant visa holders who want to apply for a Green Card?
Both the former 30/60 Rule and the new 90-Day Rule center on the concept that an individual may not be truthful about their real intent for entering the U.S. It is guidance that in the past allowed USCIS to adjudicate a Green Card application quickly if it fell within the 30- or 60-day time frame. Recent guidance has extended the period of expedited adjudication to 90 days. Therefore, USCIS may question the true intent of individuals who come to the U.S. on a nonimmigrant visa and, within the first 90 days, either
- apply for permanent residency or
- violate the terms of their nonimmigrant status in some way.
Historically, applications to adjust status submitted
- within 30 days of arrival in the U.S. have been viewed as misrepresentations of intent, and the applicant could be barred entry to the U.S. for life;
- within 60 days of arrival in the U.S. were viewed as possibly genuine but meriting careful scrutiny as to whether the applicant violated their nonimmigrant status during that time; and
- after 60 days were viewed as likely genuine and subject to normal processing guidelines.
However, the new guidance extends the time frame requiring extra scrutiny to 90 days. If a person violates the terms of their nonimmigrant visa in any way during that 90-day period, USCIS may adjudicate their case on the basis of misrepresentation of intent. Their application for a change in status can be denied as inadmissible, and they may even be banned from the U.S. for life.
What actions violate nonimmigrant status?
Actions that are considered inconsistent with nonimmigrant status and that qualify as evidence of misrepresentation during the 90-day time frame immediately following entry into the U.S. include
- seeking or taking a job or any form of employment;
- enrolling in a “full course of academic study” without properly applying to change nonimmigrant status to that of a nonimmigrant student;
- marrying a U.S. citizen or permanent resident and taking up permanent residence; and
- ”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.”
In short, any violation of the particular terms and conditions of a specific type of nonimmigrant visa within the first 90 days of a person’s arrival in the U.S. can result in swift adjudication. If they are found guilty of misrepresentation, they can be declared inadmissible and banned from the U.S. for life.
What happens after the 90 days?
Requests for an adjustment of status submitted at least 90 days following arrival on a nonimmigrant visa should be processed under standard procedures, without an assumption of misrepresentation.
Where can I find the actual guidance on the new 90 Rule?
The Department of State issued the new 90-Day rule guidance as 9 FAM 302.9-4(B)(3) (U) Interpretation of the Term Misrepresentation.
The old 30/60 Rule guidance can be found as CT: VISA-272;12-20-2016.
What if I inadvertently violate a term of my nonimmigrant visa?
Adjudicating a case as inadmissible focuses on whether
- the person is guilty of a misrepresentation;
- the person made the misrepresentation willfully, on purpose;
- the misrepresentation is material, that it is related to getting the nonimmigrant visa; and
- the person used fraud or misrepresentation to get a nonimmigrant visa so that they could then more easily apply for permanent resident status.