Considerations for Adjustment of Status following admission to the U.S. on the B Visa.
The B visa requires “non-immigrant” intent.
Therefore, it is important to consider possible application of the rules interpreting pre-conceived intent and misrepresentation when applying for an Adjustment of Status – AOS (an immigrant application) after entering the US on a B-2 visa.
A. 90 Day Rule
- Department of State
On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which provides:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.
Specifically, 9 FAM 302.9-4(B)(3)(g) and (h) have been substantially revised, the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for future visas, or for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.
What Activities Will Trigger the Application of the 90-Day Rule and How Has This Changed from the 30/60-Day Rule?
Though the wording is slightly different, both the former FAM guidance and the new FAM guidance describe the following actions that are sufficient to trigger the application of the rule:
- Engaging in unauthorized employment;
- Enrolling in a course of academic study if such study is not authorized for that nonimmigrant classification;
- A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States.
- Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.
While USCIS does not strictly apply the 90-day rule and does a more individualized approach it is still informed by the DOS approach.
a. AOS after Initial B-2 Entry – Most Recent Admission
Typically, the 90-day rule will come into play after an admission or entry to the US in B-2 visa. Otherwise put, an AOS application filed after 90 days of B-2 entry should not raise question of intent or misrepresentation.
b. AOS after B-2 Extension
Similarly, the 90 days rule will apply to individuals who have filed a B-2 extension as well. This means, if an AOS filed after 90 days of filing the B-2 extension should not raise question of intent or misrepresentation.
B. Adjustment of Status and Unlawful Presence (ULP)
If someone is in the U.S. unauthorized, they may be deemed as accruing “unlawful presence” (ULP) which can have an impact on their future entries to the U.S.
|ULP < 180 days||= no bar|
|180 days < ULP < 1 year||= 3 year bar|
|1 year < ULP||= 10 year bar|
If you have a family member who can sponsor a green card on your behalf so you can adjust status in the US to a permanent resident, you may be able to continue to remain in the US.
a. Viability of the AOS
Typically, if you have an immediate relative (spouse, child or parent) who is a US Citizen or a spouse who is a green card holder, they may be able to file a petition for alien relation which will allow you to concurrently file an application to adjust status to a permanent resident. While immediate relatives of US citizens may be able to pursue adjustment of status even if they fall out of status or are not in an authorized stay, if they entered with inspection, the same is not true for spouses of Lawful Permanent Residents.
b. ULP Accrual
Finally, ULP is tolled with the filing of a properly filed AOS application. If the AOS is denied, then ULP will accrue from the date of denial. Further, any ULP that accrued prior to the filing of the AOS will also be considered in aggregate for determining whether the individual may be subject to any future bars.
Disclaimer: This is a general advisory and not the basis for specific legal advice. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Consultation: Please contact MPLG today to schedule a consultation for your individual concerns.
 MPLG does not endorse entering the U.S. on a B visa with pre-conceived intent to immigrate to permanent residence, which may be deemed a misrepresentation and violation of the B visa. This memorandum simply discusses some of the considerations USCIS applies when reviewing an application to adjust status following an admission on the B visa.
 A waiver is typically required to adjust status through a family member if the foreign national entered without inspection. This advisory does not provide information related to