* * *
WARNING: The contents of this article should now be considered primarily historical in nature. In September of 2017, the U.S. Department of State (DOS) made revisions to its Foreign Affairs Manual (FAM), which included elimination of the so-called “30/60 day rule.”
* * *
If you plan to change or adjust your visa status in the U.S., something called the “30/60 day rule” may be more important than you realize. This is particularly true if questions arise about your real reasons for entering the United States in the first place. For example, did you come as a tourist but really intend to look for a job? Or did you come as a student, really planning to marry your U.S. boyfriend or girlfriend and get a green card?
Intentions upon entry to the U.S. are surprisingly important for anyone who comes on a nonimmigrant (temporary) visa. Every visa is issued with the idea that its bearer will use it for only specific purposes, such as to be a tourist (while on a B-2 visa), study (on an F-1 or M-1 visa), get married to a U.S. citizen (K-1 visa), or work for a U.S. employer (H-1B and other visas).
If you enter the U.S. claiming that your purpose is to do what you’re allowed to according to that visa, but actually have a “preconceived intent” to do something else that’s isn’t within the allowable scope of the visa, that’s considered a form of fraud. And fraud upon entry to the U.S. has serious immigration consequences, potentially making the person ineligible for further visas or green cards (lawful permanent residence) down the line.
Of course, people’s lives change, and it’s not always easy for the U.S. immigration authorities to draw conclusions like, “Oh, you married a U.S. citizen? You must have planned to do that when you entered the United States as a student, therefore you committed fraud upon entry, therefore we’re not going to give you a green card based on that marriage.” In such a situation, the applicant would have the opportunity to argue and show evidence that in fact, the marriage plan arose only after having entered the United States.
Nonetheless, all that arguing back and forth takes time and effort. That’s why the U.S. government came up with the 30/60 day rule.
Here’s how the 30/60 day rule should be implemented by immigration officers, according to the U.S. State Department’s Foreign Affairs Manual (FAM):
If an alien violates his or her nonimmigrant status . . . within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry. If an alien initiates such violation of status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence.
In other words, even if you truly had a quick change of intention –came to the U.S. as a tourist, met the love of your life, and decided to get married two weeks later — you’re going to have a tough time convincing the immigration officials that you hadn’t planned this all along if you actually get married, apply for the green card, or violate your status in some other obvious way within your first 30 days in the United States. Better to wait at least 60 days.
Are you completely safe after waiting 60 days to attempt to change your status? No. Notice that the FAM also mentions that immigration officials can act on facts giving them a “reasonable belief” that someone misrepresented his or her intent. In a marriage-based case, for example, it would be all too easy to get caught in the lie during the process of proving the bona fides of one’s marriage (as is necessary in every marriage-based application). Let’s say the noncitizen bride slips up and mentions that she brought her mother’s wedding dress with her; or that some of the letters between the couple refer to the “upcoming wedding” before the noncitizen arrived in the United States. Pointing out that you waited 60 days before doing anything is not going to help much in such a case.
For more information or a personal discussion of your case and potential strategies to adjust or change status, consult an experienced immigration attorney.