Does leaving to Mexico for few days reset the 30/60/90 day rule of I-485?

[JonStockholm 0]

Hi,
I entered the US six weeks ago on ESTA (Visa Waiver) and while I was here I got married. I did not intent to stay here when I first came, but it just happened that I got married and we decided US is a better option for us at the moment. I would like to apply for the change of status and green card, but am worried about the 30/60/90 day "rule" immigration applies when checking if applicant for I-485 had the intent of staying when he entered the US.
Like I said, I entered the US on October 30th, so technically I will soon be here for over 60 days. However, I have made a 10 day trip to Tijuana in Mexico in November. I did not receive a new stamp in my passport, so I still need to leave the States 90 days from October 30th (the day I flew in) and not 90 days from November 26th (when I returned to US from Mexico). My question is this: When applying for change of status (I-485), does the 30/60/90 day rule apply to the VW stamp in my passport, or the day when I last entered the US from Mexico, even though I did not get new 90 days stamp at that time as short trips to Mexico and Canada count into the "ESTA 90 days time".
Thank you very much for your answers.

[Darnell 8,478]

nope, no reset. it's a special feature of NAFTA, sorry.

the first date on this POE event governs stuff,

however even with that said,

usually any overstay is forgiven when the greencard is awarded, nothing to submit to get it forgiven, either.

Edited December 11, 2013 by Darnell

[Ontarkie 14,276]

~~Moved to Adjustment of Status from Work, Student, & Tourist Visas, from Bringing Family Members of US Citizens to America~~

[JonStockholm 0]

Hi Darnell,

I understand that I don't get a reset of my 90 days of ESTA if I leave to Mexico for a few days, but I am wondering to which day would then the 30/60/90 day rule apply when I send in my I-130, I-485 and other forms. Would I be considered to have come to the US with intention of staying, because I applied for AOS less than 30 days after I came from Mexico, even though I was stamped in to the US two months ago?

[aaron2020 11,651]

There is no such thing as a 30/60/90 day rule. There is no such rule.

It's a formula used by people like you who enter and suddenly within days think about adjusting. It's a rule of thumb. It's not an official rule.

Generally, visitors entering with the intent to adjust sometimes thinks this 30/60/90 rule will protect them.

[JonStockholm 0]

First of all, there is no need for the rather mean undertone and statements of type "people like you who think...".

I entered the US with full intention of going back to Sweden. I had my return flight which I now cancelled.

Secondly, U.S. Department of State Foreign Affairs seems to disagree with you. Look at this document on page five under: 9 FAM 40.63 N4.7

http://www.state.gov/documents/organization/87011.pdf

[aaron2020 11,651]

First of all, there is no need for the rather mean undertone and statements of type "people like you who think...".

I entered the US with full intention of going back to Sweden. I had my return flight which I now cancelled.

Secondly, U.S. Department of State Foreign Affairs seems to disagree with you. Look at this document on page five under: 9 FAM 40.63 N4.7

http://www.state.gov/documents/organization/87011.pdf

Did you get marry before you came back from Mexico?

Did you return from Mexico married and planning to adjust?

Edited December 11, 2013 by aaron2020

[JonStockholm 0]

We got married in April and I have visited her three times since then. I never entered with intention of staying.

Edited December 11, 2013 by JonStockholm

[nzltex 4]

My attorney has filed numerous successful AOS cases, and informed me that even those with a significant overstay under the VWP don't usually get asked about intent anymore. The questions will be around a bona fide marriage. I am in a similar situation to you, I entered on the VWP but filed just after the expiration of my 3 months. This might give you some more info on the matter: http://www.uscis.gov/sites/default/files/files/nativedocuments/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

[JonStockholm 0]

Hi Jason,

My concern is that I will apply too soon, not that I will have an overstay on my VWP. If they count my returning from Mexico date as the date I last entered the US, I would be filing for AOS sooner than 30 days after returning. The catch here is that my going to Mexico does not reset the ESTA, but I don't know if the 30/60/90 day counter for I-485 resets or not.

[nzltex 4]

Hi Jason,

My concern is that I will apply too soon, not that I will have an overstay on my VWP. If they count my returning from Mexico date as the date I last entered the US, I would be filing for AOS sooner than 30 days after returning. The catch here is that my going to Mexico does not reset the ESTA, but I don't know if the 30/60/90 day counter for I-485 resets or not.

I'd suggest reading through all some recent AOS/VWP threads here, and following some of the users through their cases. You'll see that the 30-60-90 day rule has not been an issue for many years. The document I linked to is more recent, and deals more specifically with how USCIS adjudicates AOS for those entering on the VWP.

I know you're not overstaying, I just mentioned my own experience because overstay and intent appear to be asked about most commonly.

If you feel more comfortable paying close attention to the 30-60-90 guideline, then I would start 'counting' from the day you were last inspected by a CBP officer, which is presumably when you came back from Tijuana.

[Hypnos 6,576]

U.S. Department of State Foreign Affairs seems to disagree with you. Look at this document on page five under: 9 FAM 40.63 N4.7

http://www.state.gov/documents/organization/87011.pdf

The State Department and the Department of Homeland Security are two different agencies. The link you posted applies only to DoS (and so, people seeking visas), not AoS applicants.

The 30 / 60 / 90 day rule is a fallacy for in-country adjustments. They explicitly state this under heading c.

Edited December 12, 2013 by Hypnos

[MacUK 983]

We got married in April and I have visited her three times since then. I never entered with intention of staying.

I thought you said you arrived in the US 6 weeks ago and while there got married?