Adjustment of Status from Visa Waiver Program due to COVID-19

[mlong1397 3]

We filed an I-130 in Nov 2019. My husband arrived in mid March on the visa waiver program (from Chile) right before all of the coronavirus shutdowns. We are now thinking about applying for an adjustment of status since we are not comfortable with him flying (he has an autoimmune disease potentially making him more susceptible). My concern is the supposed “90-day rule” / guideline, where it raises a red flag for someone to adjust status within 90 days of arriving. However, it seems worse and riskier to wait until his tourist visa expires in June... Any ideas if this would count as something acceptable for him to change his intent from visiting me to staying here and not be considered misrepresentation?  

Any advice you can offer would be most appreciated!

[geowrian 22,336]

There is no 90 day rule for AOS. You can file for AOS fine. Your I-485 will be approved or denied based on its merits, not about any intent almost 2 months ago.

The only issue would be if he made a misrepresentation at POE (as is always the case for anybody).

 

9 minutes ago, mlong1397 said:

riskier to wait until his tourist visa expires in June

Pedantic point: Visa Waiver Program -> there is no visa, and it's a different status than what a tourist visa allows.

Edited May 5, 2020 by geowrian

[mlong1397 3]

They mention it on their website: 

3. The U.S. Department of State’s 90-Day Rule ^[8] 

DOS developed a 90-day “rule” to assist consular officers in evaluating willful misrepresentation in cases involving an applicant who violated his or her nonimmigrant status or whose conduct is inconsistent with representations made to either the consular officer at the time of the visa application or to the immigration officer at the port of entry. The DOS 90-day rule creates a presumption of willful misrepresentation if an applicant engages in such conduct within 90 days of admission to the United States. 

Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers. However, USCIS officers must examine all of the factors in an applicant’s case. After such review, USCIS officers may find that an applicant made a willful misrepresentation, especially if the violation or inconsistent conduct occurred shortly after the consular interview or admission to the United States. ^[9] Officers should carefully assess each situation and continue to evaluate cases for potential fraud indicators. When appropriate, officers should also refer cases to Fraud Detection and National Security, according to existing procedures.

 

https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

 

I realize it says guideline, it just still seems weird to me. What difference does 80 v 91 days make?

[Boiler 43,576]

36 minutes ago, mlong1397 said:

They mention it on their website: 

3. The U.S. Department of State’s 90-Day Rule ^[8] 

DOS developed a 90-day “rule” to assist consular officers in evaluating willful misrepresentation in cases involving an applicant who violated his or her nonimmigrant status or whose conduct is inconsistent with representations made to either the consular officer at the time of the visa application or to the immigration officer at the port of entry. The DOS 90-day rule creates a presumption of willful misrepresentation if an applicant engages in such conduct within 90 days of admission to the United States. 

Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers. However, USCIS officers must examine all of the factors in an applicant’s case. After such review, USCIS officers may find that an applicant made a willful misrepresentation, especially if the violation or inconsistent conduct occurred shortly after the consular interview or admission to the United States. ^[9] Officers should carefully assess each situation and continue to evaluate cases for potential fraud indicators. When appropriate, officers should also refer cases to Fraud Detection and National Security, according to existing procedures.

 

https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

 

I realize it says guideline, it just still seems weird to me. What difference does 80 v 91 days make?

You said you are adjusting so how is this relevant?

[geowrian 22,336]

1 hour ago, mlong1397 said:

They mention it on their website: 

3. The U.S. Department of State’s 90-Day Rule ^[8] 

DOS developed a 90-day “rule” to assist consular officers in evaluating willful misrepresentation in cases involving an applicant who violated his or her nonimmigrant status or whose conduct is inconsistent with representations made to either the consular officer at the time of the visa application or to the immigration officer at the port of entry. The DOS 90-day rule creates a presumption of willful misrepresentation if an applicant engages in such conduct within 90 days of admission to the United States. 

Although referred to by DOS as a “rule” in its Foreign Affairs Manual (FAM), the 90-day rule is not a regulation. It is DOS guidance to its officers, and as such, the 90-day rule is not binding on USCIS officers. However, USCIS officers must examine all of the factors in an applicant’s case. After such review, USCIS officers may find that an applicant made a willful misrepresentation, especially if the violation or inconsistent conduct occurred shortly after the consular interview or admission to the United States. ^[9] Officers should carefully assess each situation and continue to evaluate cases for potential fraud indicators. When appropriate, officers should also refer cases to Fraud Detection and National Security, according to existing procedures.

 

https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3

 

I realize it says guideline, it just still seems weird to me. What difference does 80 v 91 days make?

DOS "rule"

AOS is a USCIS process. No consular officers are involved. The FAM is not used for AOS.

You're worrying over nothing,