入境90天内申请485的可行性分析

“90天规则”来源于国务院的Foreign Affairs Manual（FAM）：9 FAM 302.9-4(B)(3)  (U) Interpretation of the Term Misrepresentation
g. (U) Activities that May Indicate a Possible Violation of Status or Conduct Inconsistent with Status
(1)  (U) In General:
(a)  (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving individuals in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to individuals who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
(b)  (U) The fact that an individual's subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that their intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States (typically you are looking at activities after entry into the United States), see paragraph (2) below regarding the 90-day rule.
(c)  Unavailable
(2)  (U) Inconsistent Conduct Within 90 Days of Admission to the United States:
(a)  (U) If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of their true intentions in seeking a visa or admission to the United States).  You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe they are ineligible 6C1.
(b)  (U) Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an applicant’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:
(i)     (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's employment activities when make a 6C1 finding under the 90-day rule.  Additionally, when a noncitizen has been admitted on a nonimmigrant status other than B1/B2 and is engaging in activities consistent with that status (e.g., an F1 nonimmigrant attending a university), engaging in employment that is not authorized incident to status would not be sufficient to justify a presumption of misrepresentation;
(ii)    (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);
(iii)    (U) A nonimmigrant in B status, marrying a United States citizen or LPR and taking up residence in the United States.  To establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, you may consider whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or
(iv)   (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment.  Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90-day rule; the individual must also engage in conduct inconsistent with authorized status without the benefit of such a change of status.
(c) (U) In cases where you are unsure whether an activity is inconsistent with nonimmigrant status or whether a violation occurred, you may request an AO from L/CA.
(d) (U) A consular manager must review all 6C1 findings of ineligibility under the 90-day rule.
(3)  (U) Inconsistent Conduct After 90 Days:  If an individual violates or engages in conduct inconsistent with their nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises.  If you determine that the applicant misrepresented their purpose of travel at the time of the visa application or application for admission, you should apply a traditional 6C1 analysis.  See 9 FAM 302.9-4(B)(1) above.

在最新版本的FAM中明确提到，单纯是入境90天内提交Adjustment of Status申请（且不做需要AOS通过之后才能做的事情，比如工作）并不构成虚假陈述。

不过，国务院的手册只是提供了一个参考，最终拍板的还是USCIS。USCIS有一套自己的Policy Manual（PM），里面曾经有写90天规则细则，但在2021年7月16号，USCIS删除了自己政策手册中的90天规则。

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.

这一政策更新影响的章节是Policy Manual第八卷J部分第三章。从中可以看到，移民局现在并不遵循“90天规则”，而是凭常理综合判断申请人是否存在故意虚假陈述。

If there is no evidence the applicant obtained or sought to obtain a benefit under the Immigration and Nationality Act (INA) by fraud or willful misrepresentation, USCIS should find that the applicant has met the burden of proving that he or she is not inadmissible under this ground.[5]


If there is evidence that would permit a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, then the applicant has not successfully met the burden of proof. In these cases, USCIS considers the applicant inadmissible for fraud or willful misrepresentation, unless the applicant is able to successfully rebut the officer’s inadmissibility finding.

尽管90天规则不再适用，还是建议申请人不要做一些出格的事情，比如：

• 刚到美国就结婚
• 刚到美国就提交485表格
• 刚到美国就预约绿卡体检
• 在原籍国辞职或卖房
  

除此以外，即便入境已经超过90天，移民局官员也可能认定申请人存在虚假陈述。

声明：本文仅用于信息交流，不构成任何法律意见或建议。