What Is the 90-Day Rule?
The 90-day rule is a guideline used by U.S. immigration officials to determine if a person misrepresented their intentions when entering the United States. If someone takes an action that conflicts with their visa type within 90 days of entry, officials may assume they were not honest about their original purpose for coming to the U.S.
This rule is not a law, but helps immigration officers decide if a person lied to gain entry. It often affects those who apply for a green card shortly after arriving on a nonimmigrant visa, such as the B1/B2 or TN visa.
Who Is Affected by the Rule?
The rule impacts anyone in the U.S. on a temporary visa who engages in activity that suggests permanent intent. Canadians are commonly affected when they:
- Enter the U.S. on a visitor visa (B1/B2) and later apply for a green card.
- Enter on a TN visa and adjust status soon after arrival.
Even though Canadians do not always require a visa stamp, the rule still applies to their entry and immigration activities.
Key Activities That Raise Red Flags
According to U.S. immigration policy, actions within 90 days of entry that may suggest misrepresentation include:
- Marrying a U.S. citizen or a green card holder and applying for a green card.
- Working without authorization, especially on a B1/B2 visa.
- Enrolling in school without the proper student visa.
- Filing for adjustment of status while also taking steps that show intent to live in the U.S. permanently (e.g., signing a long-term lease).
Examples: How This Rule Impacts Canadians
Example 1: A Canadian on a Visitor Visa Applies for a Green Card
A Canadian enters the U.S. on a B2 visa to visit family. After 30 days, they marry a U.S. citizen and apply for a green card. This raises a red flag under the 90-day rule and may lead to a finding of willful misrepresentation unless the person can prove they did not intend to stay permanently when they entered.
Example 2: TN Visa Holder Adjusts Status Too Soon
A Canadian enters the U.S. on a TN visa for a temporary job. Within 60 days, they marry and apply for a green card. Even though they were working legally under TN status, taking steps to become a permanent resident this early can create problems under the 90-day rule.
Rebutting the Presumption of Misrepresentation
If officials believe you violated the 90-day rule, they must tell you why. Then, you must show that you didn’t plan to break immigration rules when you entered. You can rebut this presumption with:
- Proof of a change in personal circumstances (like an unexpected marriage).
- Evidence of round-trip tickets and ties to Canada.
- Documents that show you planned to return home initially.
Tips for Canadians Considering Adjustment of Status
- Wait 90 Days: Delay major immigration steps until at least 90 days after entering the U.S.
- Stay Consistent: Your actions should match what you told officers when you entered.
- Keep Documentation: Save flight itineraries, letters from employers, and proof of return plans.
- Talk to a Lawyer: Immigration laws are complex. A licensed attorney can help you avoid costly mistakes.
Final Thoughts
The 90-day rule is important for Canadians entering the U.S. on visitor or TN status who later decide to stay permanently. Taking immigration steps too soon may cause serious problems. Plan ahead, wait the appropriate time, and get legal guidance when needed.
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
