The complexity of U.S. immigration laws can often feel overwhelming, and for those traveling under the Electronic System for Travel Authorization (ESTA), understanding the 90-day rule and its implications for Adjustment of Status applications is crucial. The 90-day rule can significantly impact the outcome of your immigration journey, and being informed about this policy is essential to making informed decisions about your future in the United States. This comprehensive guide is designed to provide ESTA holders with the critical information they need to navigate the 90-day rule and its impact on Adjustment of Status, ensuring that you are well-equipped to handle the challenges that may arise during the immigration process.

Understanding the 90-Day Rule

 The 90-day rule is a policy used by immigration officers to assess whether someone has violated the terms of their visa or ESTA. According to this rule, if an individual performs an act within 90 days of entering the U.S. that is inconsistent with their visa or ESTA status, such as marrying a U.S. citizen or applying for a change of status, they may be presumed to have misrepresented their intentions when entering the country. This presumption can lead to severe consequences, including the denial of Adjustment of Status applications and potential ineligibility for future visas. This rule’s policy is based on the fact that one cannot hold immigrant intent while entering the U.S. as a non-immigrant. 

The interesting wrinkle here is that this 90-day rule is no longer on the UCIS books, however, we tend to be very conservative in our approach to filing these cases as the culture of scrutiny that is placed in these cases is a matter of habitual examination by USCIS officers which is why we still prepare cases with this in mind. 

The Implications of the 90-Day Rule on Adjustment of Status

ESTA holders should be acutely aware of the potential implications of the 90-day rule on their Adjustment of Status applications. Applying for Adjustment of Status within the 90-day period can result in the presumption that you had a preconceived intent to immigrate, which can lead to the denial of your application. Furthermore, violating the 90-day rule can also impact your ability to obtain a visa or re-enter the U.S. in the future, potentially jeopardizing your immigration goals.

Generally, individuals who enter the United States under the Visa Waiver Program cannot adjust their status to that of a lawful permanent resident while in the country. When entering under the Visa Waiver Program, you assure Customs and Border Protection agents that you don’t intend to stay in the U.S. If your intent is to remain in the U.S., you should seek the appropriate visa from a U.S. consulate in your home country.

However, an exception exists for immediate relatives of U.S. citizens. If you are a beneficiary of an immediate-relative petition and file an adjustment of status application within the 90-day authorized period, you may be eligible to adjust your status. This includes Visa Waiver Program entrants who decide to permanently reside in the U.S. with their U.S. citizen family members, such as spouses, children over the age of 21, or parents (if the applicant is under 21 years old and unmarried). These three types of familial ties together form what is called the “immediate relatives” category (the highest priority in family-based sponsorship).

Yet, Visa Waiver Program entrants must be cautious when applying for a green card. First, they must be prepared to show they did not have preconceived intent to stay. Second, it is crucial to file the application while still in Visa Waiver Program status if they can. There are ways to adjust their status after they have overstayed their 90-day period and it’s best to speak to an immigration lawyer in both scenarios. For all other green card applications, the consulate process in your home country must be followed after USCIS approves the initial petition.

When considering a green card application while in the U.S. on the Visa Waiver Program, time is of the essence. Prioritize filing within 90 days of entry as overstaying the Visa Waiver Program's 90-day limit makes you unlawfully present and subject to removal by the government. Visa Waiver Program entrants should be aware that, as a condition of their entry, they waive their right to an immigration judge review before removal; and that a pending green card application does not protect a Visa Waiver Program entrant from removal unless filed within 90 days.

Consulting with an experienced immigration attorney can be invaluable for ESTA holders seeking Adjustment of Status. An attorney can provide expert guidance on the complexities of the 90-day rule, ensuring that you understand the potential risks and benefits associated with your decision to apply for Adjustment of Status. Furthermore, an attorney can assist you in navigating the Adjustment of Status application process, helping you avoid common mistakes and maximize your chances of success. A properly prepared case can make all the difference with respect to your short-term and long-term immigration options.

Adhering to U.S. immigration laws is of paramount importance for ESTA holders seeking Adjustment of Status. Failure to comply with the 90-day rule or other immigration laws can result in severe consequences, including deportation, ineligibility for future visas, and being barred from entering the U.S. in the future. By maintaining compliance with the law, you can protect your immigration status and avoid potential pitfalls that could jeopardize your future in the United States.

The importance of proper documentation cannot be overstated for ESTA holders seeking Adjustment of Status. Ensuring that you have all the necessary paperwork and supporting evidence for your application is essential to building a strong case and increasing your chances of approval. Proper documentation demonstrates your commitment to complying with U.S. immigration laws and provides a solid foundation for your Adjustment of Status application.

Navigating the U.S. immigration system can be fraught with challenges, and ESTA holders may encounter various obstacles when seeking Adjustment of Status, such as proving that they have not violated the 90-day rule or addressing other potential issues with their immigration status. Working with an immigration attorney can help you overcome these challenges by providing expert advice and practical solutions tailored to your unique situation. By being proactive and seeking professional guidance, you can successfully navigate the complexities of the immigration process and achieve your immigration goals.

Case Studies

Maria's Journey: Emma, a national of the United Kingdom, traveled to the U.S. under ESTA to visit her American boyfriend. After two months, they decided to get married and applied for an Adjustment of Status. Unfortunately, Maria's application was denied due to the 90-day rule, and she faced potential deportation. With the help of an immigration attorney, Maria was able to address the issues the second time she filed her case and successfully obtained her green card, allowing her to stay in the U.S. with her new husband.

John's Success: John, a citizen of Greece, traveled to the U.S. under ESTA to explore business opportunities. He decided to start a business in the U.S. and applied for a change of status. However, John was mindful of the 90-day rule and waited until after the 90-day period had passed before applying for the change of status. As a result, John's application was approved, and he was able to establish his business in the U.S. successfully.

The 90-day rule is a critical aspect that ESTA holders need to understand when considering applying for Adjustment of Status in the U.S. It is important to be mindful of the implications of the rule and take the necessary steps to navigate it successfully. Consulting with an immigration attorney, complying with U.S. immigration laws, and ensuring proper documentation are all essential factors that can contribute to a successful Adjustment of Status application. By being informed and proactive, you can achieve your immigration goals and successfully navigate the complexities of the U.S. immigration system. Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com, or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.