Editor’s Note: this post was originally published in -September 28, 2017 and has been updated for accuracy and comprehensiveness.

In the past we reported on an update to the Foreign Affairs Manual (FAM) when a 90 Day Rule replaced the prior 30/60 Day Rule regarding actions taken after entering the US on a nonimmigrant visa. This post provides new information regarding that change. 

Immigration officers at US consulates and ports of entry around the world are bound by the rules in the FAM when issuing visas and admitting foreign nationals to the US. Prior to September 1, 2017, the FAM included a “30/60 Day Rule.” The rule was meant to guide consular officers in determining whether someone who entered the US using a nonimmigrant visa (such as a B1/B2 visitor’s visa, an F-1 student visa, or a J-1 exchange visitor’s visa), and later married a US citizen and applied for adjustment of status (a “green card”), misrepresented their intent at entry. There was a presumption of misrepresentation if the individual married a US citizen or permanent resident and took up residency in the US and applied for adjustment of status - a green card - within 30 days of entry.

On September 1, 2017, the 30/60 Day Rule was eliminated, and a new 90 Day Rule was created. That created a presumption of misrepresentation if an individual enters the US and marries a US citizen, takes up residency in the US, and applies for adjustment of status within 90 days of entry. It is important to note that this rule would not apply to someone who entered the US on a nonimmigrant visa, got married, and then left the US prior to the expiration of their authorized stay to reside in their home country.

The rule has potentially significant consequences. If a finding of misrepresentation is made, an individual can be barred from obtaining a green card through marriage.

Initially this change was made in the FAM only, which means that USCIS officers who decided adjustment of status (green card) cases here in the US are not bound by the new rule. We expected that the regulations for USCIS officers would also be updated with this new guidance. However, as of the date of this post, that still has not happened. And because we now have a new more immigrant friendly administration, we do not expect that to change any time soon. 

While USCIS officers are not bound by the 90 Day Rule in the FAM, they can and do use it as guidance when deciding whether someone has made a misrepresentation at entry.

Therefore, it remains important to consult with an immigration attorney before deciding to marry a US citizen and to apply for a green card here in the US. At Hurtubise Weber Law, we are experienced in this area and can provide you with the knowledge and expertise necessary to ensure a smooth transition to becoming a US permanent resident. Please contact us at theteam@huwelaw.com or 415-496-9040 to schedule an initial legal evaluation.