Here's an explanation from Quora by a former Consular Officer.
Gaku Sato
·
Formalist.Jun 10
If I am married to a US citizen, then while visiting my husband I decide to stay in the US, can I change my status?
The US is legally mysterious because the basis of admission is intent. If you enter on a nonimmigrant visa, you must have nonimmigrant intent.
So what happens if enter, then file to adjust (not change) status? (In US lingo, you change between nonimmigrant statuses, but you adjust from nonimmigrant to immigrant.)
USCIS used to have a day rule. If you filed before 30, later 60, then 90 days, then they presumed you had entered with preconceived intent. That means they legally presume you entered on a nonimmigrant visa with immigrant intent, which means your admission was invalid, which means you don't have a status, which means you can't adjust status (because you need to adjust from a status to a status).
Despite belief that terrible things will happen to you, they mostly just tell you to go back home and apply consularly.
You could rebut the presumption by showing this was a happenstance change of intent, meaning you entered legitimately intending to visit, but then something happened and you changed your mind. That usually means showing that you still have your apartment and job and accounts and pets abroad, that you left your home country intending to return. This is an administrative process, not a criminal trial, so the burden of proof is on you.
Now a couple of things. First, they used to have a day rule, but what happened was everyone filed day 31, then 61, then 91, to get around the automatic presumption. So USCIS dropped the rule and now says the presumption can be applied at any time.
Second, USCIS is not consistent in application of this presumption, so one person may adjust with no problem but another might be told to go home. I'm guessing with the current administration, the chance of having to leave the country is greater, simply because it's the more hostile action.
Finally, the consulate still uses a 90-day rule. Then the result is: because of preconceived intent, you were out of status; because you were out of status, your visa was voided; if you filed to adjust status before 90 days, then you will have demonstrated immigrant intent; so even if you decide not to pursue immigration, you will likely be refused any nonimmigrant visa for a long time.
So if you go that route, people still recommend waiting 90 days from entry.
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