The 90-Day Rule
What You Need to Know

What Is the 90-Day Rule?

The 90-day rule is a policy of the U.S. Department of State (DOS). It is used for guidance by consular officers at U.S. embassies and consulates when determining whether an applicant may have made a material and willful (i.e., knowing) misrepresentation while applying for a visa or for entry to the United States.

The gist of the rule is straightforward: if a foreign national acts in a way that is inconsistent with or in violation of their temporary nonimmigrant status within 90 days of their visa application or admission to the U.S., a consular officer may automatically presume that the foreign national made a willful misrepresentation of their true intentions during the application or admission process.

Activities That Can Trigger the 90-Day Rule

Certain behaviors, if they occur within 90 days of a visa application or U.S. entry, may lead a consular officer to presume willful misrepresentation. Typical examples include:

• Engaging in unauthorized employment or enrolling in school without permission
• Marrying a U.S. citizen or permanent resident and taking up residence in the United States while on a visitor or nonimmigrant visa
• Undertaking any activity for which a change of status or adjustment of status would be required, without having been approved for such a change or adjustment

Single Intent vs. Dual Intent Visa Holders

Anyone present in the U.S. on a single intent nonimmigrant visa or as a visitor (B visa or Visa Waiver Program) needs to be aware of the 90-day rule. These individuals should consider every action outside the scope of their visa classification very carefully, especially during the first 90 days after entry.

What About Applications Filed with USCIS?

The DOS 90-day rule does not directly apply to USCIS adjudications. However, that does not mean USCIS cannot make its own finding that a material misrepresentation has occurred.

USCIS adjudicators have access to electronic records from the Department of State, Customs and Border Protection, and other agencies. They are able to look for inconsistencies and status violations that would allow a "reasonable person" to find that the foreign national misrepresented a material fact during the application process.

Rather than counting days, USCIS uses a more flexible approach. It looks for conduct or violations that occurred "shortly after the visa interview or after admission" and then carefully assesses the circumstances of the applicant's case on an individualized basis.

“USCIS does not count days but rather looks for conduct or violations that occurred 'shortly after the … visa interview or after admission' and then 'carefully assess[es] the circumstances of the applicant's case.'”

— USCIS Policy Manual, Volume 8, Part J, Chapter 3

Consequences of a Finding of Material Misrepresentation

A finding of material, willful misrepresentation may lead to a lifetime bar from admission to the United States. This is one of the most severe penalties in immigration law and can permanently affect a foreign national's ability to enter or remain in the country.