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Exceptions to the 30/60/90 Rule

When entering the United States, non-immigrant foreign nationals should be cognizant of the 30/60/90 Day Rule that pertains to all applications submitted for a change of status shortly after arrival. This rule is based upon specific presumptions about whether a not a person has acted in bad faith. The general understanding is that a rapid change in plans when holding a non-immigrant visa indicates forethought and a strategic attempt to circumvent standard immigration processes. If a person is believed to have acted in bad faith, this can result in an immediate denial.

Proving Non-Immigrant Intent

As per the Immigration and Nationality Act, all non-immigrants seeking to enter the United States with temporary visas must prove “non-immigrant” intent, meaning that their planned visits are temporary and that there are no preconceived intentions of seeking permanent residency through employment or other means. Each visa applicant must additionally show that he or she has a permanent residence in his or her own country, that there are no plans to abandon this residence and that the individual intends to leave the United States upon the expiration of his or her visa. These are standard requirements for all non-immigrant visa applications.

Change of Status Within 30 to 60 Days

A change of status application that is submitted by any non-immigrant visa holder within 30 days of his or her arrival can be automatically denied. The presumption is that the visa holder’s original intent was to enter the U.S. for the sole purpose of changing his or her status and seeking permanent residency. The individual must, however, be given the opportunity to prove that he or she has sufficient reasons for warranting the decision to file for change of status and that the application was not filed in bad faith. If the application is filed after 30 days but before 60 days have passed, the denial will not be automatic and scrutiny of the applicant and his or her claims will be less intense. In either instance, however, the burden of proof falls entirely on the foreign national.

Change of Status After 60 Days

When non-immigrants file change of status applications 60 to 90 days after entering the U.S., it is no longer presumed that they were acting in bad faith when applying for their visas. Applications are not automatically denied and the burden of proof is much less intense. The application for status change will be reviewed and processed much like any other.

Special Circumstances

There is, however, one special circumstance in which an application for change of status can be filed in under 60 days of non-immigrant entry without raising red flags. This is when the application is submitted by an immediate family member of a United States citizen. In fact, when the applicant is the parent, spouse or child of a U.S. national, preconceived intent cannot be the basis for denial if it is the only adverse factor pertaining to the applicant.

If you or a loved one is planning to file a change of status application, reach out to Kazmi & Sakata, immigration attorneys San Diego families and their loved one’s trust. We can advise you during the process and ensure your paperwork is filed correctly and on time. To schedule a free consultation, call (858) 874-0711 today. We are here to help.

July 2024