90 day rule

[Snirgeu 10]

Hello all, 

 

A short search of this forum shows that the 90 day rule is indeed an urban legend, a myth. 

 

A bit of background. I had my I130 petition approved on February 24, 2022. The NVC welcome letter came on April 7. 

In the meantime, my spouse received an E2 and on March 31 we relocated to the US (prior to the welcome letter. Visa was issued February 15, which is nine days before the I130 approval). 

 

Now we need to pay fees for Affidavit of Support and IV on CEAC. 

 

I am hesitant for us to do that as I don't want my spouse to have to return to his home country for the interview and for him to wait for the arrival of the passport following the interview and leave me here alone with our one year old daughter.

 

We are not stressed for time with respect to the GC as he can work on the E2 and the GC will happen when it happens. 

 

Bearing this in mind, I wanted to know whether the 90 day rule truly is irrelevant in our case and we should go for the AOS and stay here as a family or if he should wait to file the AOS until July... 

 

Thanks! 

[Ryan H 3,812]

***Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.***

 

**Moderator hat off**

 

No such rule appears in the USCIS Adjudicator's Field Manual; in other words, there's no such thing.  If AOS route is available to you now, take it.

[Mike E 11,740]

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

Updates

 

Technical Update - Removing References to the U.S. Department of State’s 90-Day Rule

July 16, 2021

This technical update to Volume 8 removes all references to the U.S. Department of State’s 90-day rule.

[Family 4,025]

10 minutes ago, Snirgeu said:

We are not stressed for time with respect to the GC as he can work on the E2 and the GC will happen when it happens. 

 

17 minutes ago, Snirgeu said:

leave me here alone with our one year old daughter.

 

We are not stressed for time with respect to the GC as he can work on the E2 and the GC will happen when it happens. 

 

Bearing this in mind, I wanted to know whether the 90 day rule truly is irrelevant in our case and we should go for the AOS and stay here as a family or if he should wait to file the AOS until July... 

It is not a myth, just not applied to IR at AOS stage , as of not too long ago…You did everything right ( DIY or Good Legal Rep ) as far as filing I-130 marked for Consular Process and a good E-2 submission …and it is at Consular/CBP that immigrant intent is a factor.

 

You will not be held to scrutiny nor will preconceived immigrant intent hinder the AOS filing..circumstances change for many couples, families as in your case concern for your young child. 
 

Do bear in mind that once your husband files the AOS, he is no longer in E-2 status , but joins the ranks of Pending Adjustment as IR and will wait for I-765 work permit and I-131 Advance Parole …so no travel for a bit…and hopefully USCIS new timelines will shorten. 
 

 

[arken 4,197]

6 hours ago, Family said:

Do bear in mind that once your husband files the AOS, he is no longer in E-2 status ,

Filing AOS does not affect the existing E2 status as long as one is maintaining it. One can keep working on E2 status even if one get AOS based EAD. Only when AOS based EAD is used to work or AP is used to enter US, then the person will no longer be on E2 status.

Edited April 10, 2022 by arken

[Snirgeu 10]

50 minutes ago, arken said:

Filing AOS does not affect the existing E2 status as long as one is maintaining it. One can keep working on E2 status even if one get AOS based EAD. Only when AOS based EAD is used to work or AP is used to enter US, then the person will no longer be on E2 status.

Yes, he will maintain if we do it. 

[Snirgeu 10]

8 hours ago, Ryan H said:

***Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.***

 

**Moderator hat off**

 

No such rule appears in the USCIS Adjudicator's Field Manual; in other words, there's no such thing.  If AOS route is available to you now, take it.

As far as I understand AOS is available but i508 will need to be included as well. 

[Mike E 11,740]

43 minutes ago, arken said:

Filing AOS does not affect the existing E2 status as long as one is maintaining it. One can keep working on E2 status even if one get AOS based EAD. Only when AOS based EAD is used to work or AP is used to enter US, then the person will no longer be on E2 status.

My understanding from the USCIS field manual and from lawyer  websites  is that it is complicated to file I-485 while holding an E-2.  An additional form has to be filed waiving certain rights and privileges an E-2 gives on. I don’t see any mention of I-508 in the visajourney guides.  Doing   a  search,

 

    i-508 site:Visajourney.com

 

reveals the obstacles, 
 

 

 

 

 

etc. 

 

 

 

 

 

[Family 4,025]

https://www.aila.org/File/Related/19050605a.pdf

 

 

[Family 4,025]

2 hours ago, Snirgeu said:

As far as I understand AOS is available but i508 will need to be included as well. 

Thank you for pointing that out. 

[Demise 1,295]

3 hours ago, Family said:

https://www.aila.org/File/Related/19050605a.pdf

 

 

Looking at this it looks like I-508 is only required in cases where the employment gives one diplomatic immunity as either a government official or an employee of an international organization. Most E-2s are just workers of multinational companies and do not enjoy immunity.

 

I'd leave it out, and on the off-chance that USCIS wants it, they'd RFE for it.

[Family 4,025]

9 hours ago, Demise said:

I'd leave it out, and on the off-chance that USCIS wants it, they'd RFE for it.

I think the “ old wording “ on that link is a bit clearer in that it spells out “ treaty trader, treaty investor” and privileges of the E-2 ..and VJ link shared by @Mike E shows they definitely want it. 
 

[Snirgeu 10]

I508 is required. 

 

That wasn't my question. 

 

I was more interested in whether the 90 day thing would be relevant for us. 

[jm1409 4]

On 4/10/2022 at 8:48 PM, Snirgeu said:

I508 is required. 

 

That wasn't my question. 

 

I was more interested in whether the 90 day thing would be relevant for us. 

doesn't seem like it, nope.

[Family 4,025]

I apologize, missed your final question. So NO 90 Day for  any IR adjustment therefore NO 90 Day for your case.