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Melania

Confused about the 90 day rule when filing for AOS on ESTA

By Melania in Adjustment of Status from Work, Student, & Tourist Visas

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Melania Newbie

Melania   0

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Hi Everyone, 

 

I am writing to inquire about applying for AOS from ESTA. I am a citizen and my husband was visiting me on ESTA, our circumstances has changed and we figured it would be better if we just adjusted status while he is here on esta. I read somewhere about the 90 days rule (where you wait for the esta to expire and as soon as it does you file the paperwork) but on this forum I read that this is not true. Which one is it then? I know that AOS is a long process and would rather file ASAP, but then i don't want to be greedy and apply "too soon". 

 

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Boiler Grand Master

Boiler   43,764

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Filed: K-1 Visa Country: Wales
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Somewhere?

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Eekg3089 Newbie

Eekg3089   0

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Filed: AOS (pnd) Timeline
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Hi!

 

 According to our lawyer,  she advised us to marry after 90 days. I came to visit my boyfriend and he proposed to me on my birthday in May. We got married in June and we applied for AOS in August.  Got my bio taken on Sept 13 and currently waiting for AED.  I have read in some other forums that there is no 90 days rule… but we waited anyway… just make sure to apply for AOS as soon as you gather all your paperwork to prove your bona fide marriage. You shouldn’t have anything to worry about if your boyfriend didn’t come with the intentions to get married and adjust. Changing your mind is allowed!

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Chancy Grand Master

Chancy   6,233

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1 hour ago, Eekg3089 said:

According to our lawyer,  she advised us to marry after 90 days.

 

That lawyer exposed you to risk of being detained for being out of status.  I would not recommend waiting to marry and file AOS when you have absolutely no legal basis to stay in the US.  Here's what could have happened if you had an unlucky encounter with law enforcement --

 

 

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Eekg3089 Newbie

Eekg3089   0

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Filed: AOS (pnd) Timeline
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14 minutes ago, Chancy said:

 

That lawyer exposed you to risk of being detained for being out of status.  I would not recommend waiting to marry and file AOS when you have absolutely no legal basis to stay in the US.  Here's what could have happened if you had an unlucky encounter with law enforcement --

 

 

I know that. I didn’t come on Esta. I have never been out of status a single day of my life here.

I just told her my experience with a visitors visa.  A consultation with an experienced attorney will be a lot better.

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Boiler Grand Master

Boiler   43,764

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3 minutes ago, Eekg3089 said:

I know that. I didn’t come on Esta. I have never been out of status a single day of my life here.

I just told her my experience with a visitors visa.  A consultation with an experienced attorney will be a lot better.

OP is on the VWP

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Chancy Grand Master

Chancy   6,233

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Filed: IR-1/CR-1 Visa Country: Philippines
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Posted (edited)
5 minutes ago, Eekg3089 said:

I know that. I didn’t come on Esta. I have never been out of status a single day of my life here.

 

This thread is about "90 day rule when filing for AOS on ESTA".  Your experience would not apply to the OP as their husband would be out of status and illegally in the US if they wait more than 90 days to file for AOS.

 

Edited by Chancy
clarification
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beloved_dingo Proficient

beloved_dingo   1,939

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Filed: Citizen (apr) Country: Australia
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The 90 day rule is bunk and I don't know why so many lawyers repeat it. 

K1 to AOS                                                                                   AOS/EAD/AP                                                                      N-400

03/01/2018 - I-129F Mailed                                              06/19/2019 - NOA1 Date                                              01/27/2023 - N-400 Filed Online

03/08/2018 - NOA1 Date                                                    07/11/2019 - Biometrics Appt                                   02/23/2023 - Biometrics Appt
09/14/2018 - NOA2 Date                                                    12/13/2019 - EAD/AP Approved                               04/03/2023 - Interview Scheduled

10/16/2018 - NVC Received                                              12/17/2019 - Interview Scheduled                          05/10/2023 - Interview - APPROVED!

10/21/2018 - Packet 3 Received                                      01/29/2020 - Interview - APPROVED!                  OFFICIALLY A U.S. CITIZEN! 

12/30/2018 - Packet 3 Sent                                               02/04/2020 - Green Card Received! 

01/06/2019 - Packet 4 Received                                     ROC - I-751

01/29/2019 - Interview - APPROVED!                           11/02/2021 - Mailed ROC Packet

02/05/2019 - Visa Received                                             11/04/2021 - NOA1 Date

05/17/2019 - U.S. Arrival                                                     01/19/2022 - Biometrics Waived

05/24/2019 - Married ❤️                                                    02/04/2023 - Transferred to New Office

06/14/2019 - Mailed AOS Packet                                    05/10/2023 - APPROVED!

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lovinglive Enthusiast

lovinglive   24

Posted
Filed: AOS (apr) Timeline
Posted
On 10/25/2022 at 9:05 PM, Melania said:

Hi Everyone, 

 

I am writing to inquire about applying for AOS from ESTA. I am a citizen and my husband was visiting me on ESTA, our circumstances has changed and we figured it would be better if we just adjusted status while he is here on esta. I read somewhere about the 90 days rule (where you wait for the esta to expire and as soon as it does you file the paperwork) but on this forum I read that this is not true. Which one is it then? I know that AOS is a long process and would rather file ASAP, but then i don't want to be greedy and apply "too soon". 

 

Apparently there used to be a 90 days rule but it has been removed from the policies.

 

In my view the risk of filing too early is that it appears that your husband misled CBP about their intentions when entering the US.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I-130 filed online:  July 8, 2022
I-485, 765 and 131 filed:  July 12, 2022
NOA1/I-797 received:  July 22, 2022
Biometrics appointment scheduled:  July 23, 2022

Biometrics appointment: August 11, 2022

EAD approved:  August 14, 2022

EAD returned to sender (USCIS):  August 31, 2022

EAD re-sent and delivered:  September 23, 2022

Approval of AOS:  October 11, 2022

Permanent Resident Status card received in the mail:  October 18, 2022

I-131 filed for Re-entry permit:  Nov 23, 2022

NOA1/I-797 for Re-entry permit:  Nov. 27, 2022

Submitted N-400 application for naturalization:  April 19, 2023

Naturalization interview:  July 31, 2023

Oath taking ceremony:  August 1, 2023

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nastra30 Experienced

nastra30   2,046

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Filed: IR-1/CR-1 Visa Country: Ghana
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Posted (edited)
1 hour ago, lovinglive said:

Apparently there used to be a 90 days rule but it has been removed from the policies.

 

In my view the risk of filing too early is that it appears that your husband misled CBP about their intentions when entering the US.

90 day rule (formerly 30/60 day rule) is a DOS policy. DHS (which includes USCIS) is not bound by DOS policy. DHS at their discretion may choose or choose not to include it in their decision making (especially where they suspect fraud), but they are not bound by it. Therefore, no need to wait 90days to adjust with USCIS if you are doing nothing fraudulent.

In a nutshell, USCIS has no 90 days rule.

Edited by nastra30
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Boiler Grand Master

Boiler   43,764

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Something’s like drugs suspicion is all that is needed, that is not normal however and if there were doubts why was he admitted 

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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