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Articles of Interest

30-60-90 Day Rule and Adjustment of Status


By Michael S. Cho, Esq. (info@msclaw.com)

It is important to realize that an adjustment of status is discretionary. It is possible for a person who is technically eligible for an adjustment of status to still be denied based upon the exercise of discretion by the USCIS. The most common reason why an adjustment of status is denied is where the alien abused the non-immigrant process.

Under the 30-60-90 day rule, a person who applies for a change of visa status (including adjustment of status) within 30 days of entering the U.S. is presumed to have acted in bad faith. In other words, the USCIS will presume that such a person had preconceived intent to make the change before entering the U.S. and used an easier visa to avoid the normal screening process conducted by U.S. consulates abroad.

If the adjustment of status application is made between 30 to 60 days of entering the U.S., there is no presumption made. However, there will be a strong suspicion that the person acted in bad faith and heightened scrutiny shall apply.

If the adjustment of status application is made after 60 days of entering the U.S., the presumption will be that the person acted in good faith. However, previous visa history will nevertheless be examined to determine whether any abuses of the immigration process may have occurred in the past.

How does this all matter for international couples? Should you enter the U.S. on, for example, a tourist visa, and meet the love of your life, I recommend that you wait AT LEAST 60 days from the date of entry into the U.S. before getting MARRIED. Even though you never had the intention marry when you entered the U.S. on a VWP or tourist visa, it is the appearance of pre-conceived intent that will trigger USCIS scrutiny. To play it safe, always wait AT LEAST 60 days from the date of entry to marry and apply for lawful permanent residence through Adjustment of Status.