WHAT IS THE 90 DAY RULE FOR O-1 VISA?
The 90-day rule is a guideline used by U.S. Citizenship and Immigration Services (USCIS) to determine whether nonimmigrant visa holders misrepresented their original intent when entering the United States. While the rule primarily applies to single-intent visa holders, such as B-1/B-2, F-1, J-1, and M-1 visas, it does not directly apply to O-1 visa holders because the O-1 is a nonimmigrant work visa with potential dual intent implications.
Understanding how the 90-day rule works is essential for O-1 visa holders who may be considering a change of status or adjusting to a green card in the future.
What Is the 90-Day Rule?
The 90-day rule is a presumption of misrepresentation that applies to visa holders who enter the U.S. on a single-intent visa and then engage in activities that suggest they intended to immigrate or remain permanently. Under this rule, if someone:
However, if any of these actions occur after 90 days, the presumption of misrepresentation does not automatically apply, but
USCIS can still evaluate the case based on other evidence.
Does the 90-Day Rule Apply to O-1 Visa Holders?
The O-1 visa is not explicitly subject to the 90-day rule in the same way that B-1/B-2 or F-1 visas are. The reason is that the O-1 visa, like the H-1B and L-1 visas, has aspects of dual intent, meaning that while it is a temporary nonimmigrant visa, O-1 holders are not automatically penalized for eventually seeking a green card.
However, O-1 visa holders should still proceed with caution if they are considering a change of status or green card application shortly after entering the U.S. If they apply for adjustment of status within 90 days, USCIS could still scrutinize their application for signs of misrepresentation.
The History: 30/60-Day Rule vs. 90-Day Rule
Before September 2017, USCIS followed a 30/60-day rule:
In 2017, USCIS replaced the 30/60-day rule with the 90-day rule, making it stricter and more uniform across visa types.
What Happens If You Violate the 90-Day Rule?
If a visa holder files for a green card or engages in other actions that violate the 90-day rule, USCIS will assume they misrepresented their intent when entering the U.S.. This can lead to:
However, USCIS officers allow applicants to present evidence to prove their original intent was genuine. If an applicant can demonstrate that circumstances changed after they entered the U.S., they may still be approved for a green card or change of status.
Final Thoughts
While the 90-day rule is an important guideline for many visa holders, O-1 visa applicants are generally not subject to its strictest interpretations due to the nature of the visa. However, O-1 visa holders considering a green card or adjustment of status within 90 days of arrival should still exercise caution and be prepared to justify their change of intent. Consulting with an immigration attorney can help navigate this process smoothly and avoid potential visa issues.
Need help with your O-1 visa or adjustment of status? Contact us today for expert guidance!
Understanding how the 90-day rule works is essential for O-1 visa holders who may be considering a change of status or adjusting to a green card in the future.
What Is the 90-Day Rule?
The 90-day rule is a presumption of misrepresentation that applies to visa holders who enter the U.S. on a single-intent visa and then engage in activities that suggest they intended to immigrate or remain permanently. Under this rule, if someone:
- Gets married to a U.S. citizen or green card holder
- Files for a green card (Adjustment of Status – Form I-485)
- Engages in unauthorized employment
- Enrolls in a course of study without proper authorization
However, if any of these actions occur after 90 days, the presumption of misrepresentation does not automatically apply, but
USCIS can still evaluate the case based on other evidence.
Does the 90-Day Rule Apply to O-1 Visa Holders?
The O-1 visa is not explicitly subject to the 90-day rule in the same way that B-1/B-2 or F-1 visas are. The reason is that the O-1 visa, like the H-1B and L-1 visas, has aspects of dual intent, meaning that while it is a temporary nonimmigrant visa, O-1 holders are not automatically penalized for eventually seeking a green card.
However, O-1 visa holders should still proceed with caution if they are considering a change of status or green card application shortly after entering the U.S. If they apply for adjustment of status within 90 days, USCIS could still scrutinize their application for signs of misrepresentation.
The History: 30/60-Day Rule vs. 90-Day Rule
Before September 2017, USCIS followed a 30/60-day rule:
- Applications within 30 days of entry were presumed to be misrepresentation.
- Applications between 30 and 60 days were suspicious but not automatically disqualifying.
- Applications after 60 days were generally considered safe.
In 2017, USCIS replaced the 30/60-day rule with the 90-day rule, making it stricter and more uniform across visa types.
What Happens If You Violate the 90-Day Rule?
If a visa holder files for a green card or engages in other actions that violate the 90-day rule, USCIS will assume they misrepresented their intent when entering the U.S.. This can lead to:
- Denial of their green card application
- Visa revocation
- Future immigration complications
However, USCIS officers allow applicants to present evidence to prove their original intent was genuine. If an applicant can demonstrate that circumstances changed after they entered the U.S., they may still be approved for a green card or change of status.
Final Thoughts
While the 90-day rule is an important guideline for many visa holders, O-1 visa applicants are generally not subject to its strictest interpretations due to the nature of the visa. However, O-1 visa holders considering a green card or adjustment of status within 90 days of arrival should still exercise caution and be prepared to justify their change of intent. Consulting with an immigration attorney can help navigate this process smoothly and avoid potential visa issues.
Need help with your O-1 visa or adjustment of status? Contact us today for expert guidance!
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Marcus Yi, Esq. provides personalized immigration law representation for both employment and family based immigration matters. An artist himself, Mr. Yi understands the unique nature of the arts industry, and is fully qualified to provide the best service for artists seeking to work in the United States.
He has represented corporations, non-profit organizations, and individuals, in the process of obtaining temporary visas for work, study and training, lawful permanent residence (a “green card”) and U.S. citizenship. He advises employers and individuals on all phases of immigration applications, from screening prospective hires to identifying visa strategies for new jobs and career transitions, through employment-based paths to permanent residence and naturalization.
Marcus Yi graduated from St John’s University School of Law, where he earned a Juris Doctorate degree in 2011. He is a member of the New York State Bar and is licensed to practice in State and Federal court. He is also a NYC member of the American Immigration Lawyers Association New York Chapter.
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