Countdown to Permanence: A 90-Day PR Adventure

The 90-day rule in the context of adjusting status from nonimmigrant to immigrant in the U.S. refers to a guideline used by U.S. Citizenship and Immigration Services (USCIS) to determine whether a foreign national who entered the U.S. on a nonimmigrant visa and subsequently applies for adjustment of status to permanent residence (green card) has violated the terms of their nonimmigrant status.

The rule essentially states that if an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of entry, such as marrying a U.S. citizen or working without proper authorization, it may be presumed that they had the intention to do so at the time of entry. This presumption can lead to complications in the adjustment of status process.

If the USCIS determines that an applicant violated their nonimmigrant status within the first 90 days of entry, it may raise questions about their eligibility for adjustment of status. It’s important for individuals to be aware of this rule and ensure that their actions during the initial 90 days comply with the terms of their nonimmigrant visa.

How to correctly adjust status from nonimmigrant to immigrant

Adjusting status from a nonimmigrant (temporary) visa to an immigrant (permanent resident or green card) status in the U.S. is a complex process that requires careful attention to detail. Here is a general overview of the steps involved, but keep in mind that individual circumstances may vary, and it’s advisable to consult with an immigration attorney for specific guidance:

• Determine Eligibility:

• • • Ensure that you are eligible to apply for adjustment of status. This eligibility is often based on family relationships, employment, refugee/asylee status, or other specific categories.
      

• File Immigrant Petition:

• • • A family member or employer must file an immigrant petition on your behalf. The form varies depending on the category, such as Form I-130 for family-sponsored immigrants or Form I-140 for employment-based immigrants.
      

• Wait for Visa Number:

• • • Immigrant visas are subject to numerical limits. Depending on your category, you may need to wait for an available visa number. Some categories may have immediate availability, while others may have a waiting period.
      

• File Form I-485, Application to Adjust Status:

• • • Once a visa number is available, you can file Form I-485 to adjust your status. Include all required supporting documents, such as proof of eligibility, medical examination results, and filing fees.
      

• Biometrics Appointment:

• • • Attend a biometrics appointment to provide fingerprints, photographs, and a signature.
      

• Attend a USCIS Interview:

• • • USCIS may schedule an interview to review your case. Be prepared to answer questions about your background, relationship (if applicable), and eligibility for adjustment of status.
      

• Wait for USCIS Decision:

• • • USCIS will review your case and decide whether to approve or deny your application. If approved, you will receive your green card. If denied, you may have the option to appeal or reapply.
      

• Receive Green Card:

• • If your application is approved, you will receive a green card, granting you permanent resident status.

What visas are considered dual intent visas?

Dual intent visas are visas that allow the visa holder to have both a temporary (nonimmigrant) intent and an eventual permanent (immigrant) intent. This means that individuals with dual intent visas can enter the United States for a temporary period with the option to later apply for permanent residency without jeopardizing their nonimmigrant status. Not all visas allow for dual intent, but some common examples include:

• H-1B Visa:

• • • H-1B visas are for temporary workers in specialty occupations. Holders of H-1B visas can have both temporary work intent and the intent to pursue permanent residency.
      

• L-1 Visa:

• • • L-1 visas are for intracompany transferees, allowing employees of multinational companies to work temporarily in the U.S. The L-1 visa is dual intent, allowing individuals to later apply for a green card.
      

• O Visa:

• • • O visas are for individuals with extraordinary ability or achievement in fields such as science, arts, education, business, or athletics. The O visa is considered dual intent.
      

• K Visa (Fiancé(e) Visa):

• • • The K visa is for fiancé(e)s of U.S. citizens. While it is initially a nonimmigrant visa, it allows the holder to enter the U.S. with the intent to marry and then apply for permanent residency.
      

• E Visa (Treaty Traders and Investors):

• • • E visas, such as E-1 and E-2, are for treaty traders and investors. While they are temporary visas, individuals under these categories can pursue permanent residency.
      

• U Visa (Victims of Crime):

• • The U visa is for victims of certain crimes who have suffered mental or physical abuse and are willing to assist law enforcement. It allows for dual intent, with the option to apply for a green card.

What happens if the Adjustment of Status application is filed in the first 90 days?

If an Adjustment of Status (Form I-485) application is filed within the first 90 days of a foreign national’s entry into the United States on a nonimmigrant visa, it may raise questions about the individual’s intentions at the time of entry. This is because of the USCIS 90-day rule, which is a guideline used to assess whether the individual had a preconceived intent to apply for permanent residency at the time of entry on a nonimmigrant visa.

Here are potential consequences or considerations if an Adjustment of Status application is filed within the first 90 days:

• Presumption of Immigrant Intent:

• • • USCIS may presume that the individual had an immigrant intent at the time of entry. This presumption can complicate the adjudication of the Adjustment of Status application.
      

• Request for Evidence (RFE) or Interview:

• • • USCIS may issue a Request for Evidence (RFE) seeking additional documentation or information to clarify the individual’s intent at the time of entry. In some cases, an interview may be scheduled.

• Possibility of Denial:

• • • Filing an Adjustment of Status application within the first 90 days does not automatically result in denial. However, it may lead to closer scrutiny, and if USCIS determines that there was a willful misrepresentation or violation of nonimmigrant status, the application could be denied.
      

• Consular Processing Option:

• • • In certain cases, individuals may choose to consular process for an immigrant visa rather than filing an Adjustment of Status. This involves applying for an immigrant visa through a U.S. consulate or embassy abroad.
      

• Consult with an Immigration Attorney:

• • It’s crucial for individuals facing such situations to consult with an immigration attorney. An attorney can provide guidance on the best course of action, address potential issues, and help navigate the complexities of immigration law.