What isthe30/60/90 Rule?
When an alien enters the country on a non-immigrant visa, and intends to file for a green card through his or her spouse, he or she needs to be wary of the 30/60/90 rule. There are several prominent nonimmigrant visas that do not allow an individual to enter the country while having the clear intention of staying permanently including the B-1/B-2, F-1, and J-1 visas. The 30/60/90 rule is meant to prevent individuals from intentionally using these types of non-immigration visas as vehicles to enter the country in order to adjust status to permanent residency in the US. As the rule has serious implications on the viability of an application for permanent residency, petitioners in the NY/NJ area are encouraged to consult with a local immigration lawyer.
Applications for Adjustment of Status (AOS) Within 30 days Of Entry
If an alien enters the U.S. as a tourist and then applies for permanent residency with 30 days after his or her entry, there is a presumption that the alien acted in bad faith. Under INA 214(b), an alien who files to adjust status to permanent residency within 30 days of arriving in the U.S. is presumed to be trying to avoid the more protracted consular process and to have acted in bad faith by having a preconceived intent of applying for permanent residency upon entry into the U.S.
Applications for Adjustment of Status (AOS) from 30-60 days of Entry
If an alien applies for adjustment of status on the aforementioned non-immigrant visa within 31 to 60 days after entry, USCIS may decide that there was a “preconceived intent” to enter as a immigrant, though this may be rebutted with evidence proving that the alien’s circumstances changed. In other words, the alien may make the claim that he or she did indeed not possess the intent to stay in the country permanently upon entry, but that he or she changed his or her mind after entry.
Applications for Adjustment of Status (AOS) after 60 days of Entry
If the application for permanent residency was filed after 60 days of entry, the presumption is that the application was made in good faith. Therefore, even if USCIS claims that there was a preconceived intent to stay permanently in the U.S., it would be their burden to prove that the applicant acted in bad faith.
Applying for a Marriage Based Visa
As is may be clear, this rule is complicated and often times necessities the services of an immigration attorney. For individuals in NYC, it may be helpful to consult with a local immigration lawyer prior to making an application for a marriage based green card to determine if this rule affects you.
Sethi & Mazaheri is a law firm with offices in NY, NJ and the DC metropolitan area. Our experienced immigration attorneys work on a full range of immigration matters, including marriage based green card petitions. The lawyers at our firm have filed green card petitions for married couples all over the United States, and indeed all over the world. To find out how we can help you, call now.