Temporary Visas and the 90 days rule

By: Anil Malik

When a visa applicant applies for a temporary visa, such as B, F, J, M, Q, TN or a Visa Waiver Program/ESTA., they declare they have a“single intent”. Also known as, “non-immigrant intent”,  single intent recipients must clearly state their intent is to use the visa for one specific purpose, such as tourism, business, or study, and are not allowed to stay in the United States after their visa expires.  Additionally, the individuals holding such visas are not permitted to come to United States with the intention of staying permanently. If during their stay they participate in activities outside the scope of their single intent, such as  a marriage, unauthorized work, unauthorized study or applying for a Green Card, they can be accused of  misrepresenting their original intent, and have their visa revoked.

United States Citizenship and Immigration Services must determine an individual’s original intent, when determining whether a Green Card application is valid. To resolve the question of intent, USCIS typically applies the 90-day rule. The 90-day rule states that temporary visa holders who marry or apply for a Green Card within 90-days of arriving in the United States have misrepresented their original intentions.

An individual with a temporary visa is allowed to change their mind once they are in United States as long as they came to United States with the original intent of leaving United States on expiration of visa period. Possible changes may include marriage or applying for a Green Card; however, this must be done with proof the individual did not intend to overstay when they applied for their temporary visa.

The 90-day rule serves as guidance for USCIS officers when they assess visa applications and determine if an individual misrepresented their original intent. Individuals are allowed to present evidence to show they arrived in the United States without misrepresenting their intentions. The evidence must prove the individual genuinely changed their intentions after they arrived in the United States.  If USCIS concludes that violation took place, the existing visa will be revoked and their Green Card petition will be denied.

The 90-days begin on the individual’s most recent entry in the United States.

The 90-day rule applies to all nonimmigrant visa holders who enter the United States for purpose of temporary stay and does not apply to the individuals with “dual intent” visas. For example, H-1B or L-1 work visas have “dual intent”; establishing  the individual’s ability to apply to relocate permanently. . Additionally, a K-1 fiancé visa can apply for Green Card after marrying a U.S. citizen and an individual with E or O visa can also apply for Green Card to adjust status in the United States.

Navigating the journey from a single intent visa to a permanent one can be a daunting task. If you, or someone you know is currently considering applying for a Green Card, contact the trusted Chugh, LLP immigration team.