The 90 Day Rule: Tourist Visas and Avoiding Green Card Disaster

One of the most common pieces of knowledge in immigration law is that in order to get your green card (immigrant visa) in the United States, you ordinarily need a lawful entry into the country. Getting an immigrant or non-immigrant (meaning temporary) visa from a consulate is a long process that often involves family separation. Many people think: if I’m eligible for a green card, I can come over on a non-immigrant visa and apply for it; other people come over on a non-immigrant visa and later wish to apply for the green card.

Be warned!!! Without the advice and guidance of an immigration attorney, you may be setting yourself or someone else up for severe disappointment.

A B1/B2 visa, commonly known as a tourist visa, usually entitles you to stay in the United States for six months, and is the easiest type of non-immigrant visa to acquire. Other individuals can enter easily via their country’s Visa Waiver Program. What these two methods have in common is the required intent: you must intend to stay for a limited period of time. When you arrive, you’ll be asked if this is truly the case. In other word, you must represent an intention to stay temporarily in the United States.

In order to prevent fraud and abuse of these methods of entry, United States immigration agencies apply the 90 day rule to recent arrivals applying for a green card. Under the 90 day rule, there’s a presumption of fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry.

What is “conduct inconsistent” with your non-immigrant visa? According to the Department of State’s Foreign affairs manual it includes “marrying a United States citizen or lawful permanent resident and taking up residence in the United States.” 9 FAM 302.9-4(B)(3)(g)(2). Inconsistent conduct also includes applying for paying work and taking up a course of study. And these are just examples: an officer could determine that many other kinds of conduct signal an intent that’s inconsistent with being here temporarily.

Anyone thinking of travelling to the United States in order to obtain an immigration benefit like a green card should consult with an attorney prior to doing so. Failure to follow US immigration laws could have severe consequences for you and your family, and mistakes may not be easy (and might be impossible) for an attorney to fix. Reach out to our office in order to book your consultation with Abogado Andrew!