“After you arrived as a visitor to the US in the year [____], how long did it take for you to find a job?” The 90 Day Rule and 212(a)(6)(C)(i) Blues.

Posted on October 13, 2025

That is the question that consuls are greeting nonimmigrant and immigrant visa applicants with at their interviews – no matter how many years ago the incident took place. If the answer to the question about when the work started is 3 months or less, the consuls are making 212(a)(6)(C)(i) misrepresentation decisions on the spot. The consul’s accusation? When you entered the US, you lied to the airport or port inspector about the purpose of your visit – you said “tourism” or “to visit a friend” or to “visit a relative,” but because you started working within 90 days of your arrival, the consul presumes that your true intention at the time of your arrival was to work.

With the arrival of Trump, the US consulates are becoming more and more aggressive in applying the 90 Day Rule. Ciudad Juarez? Check. Buenos Aires? Check. San Jose? Check. Just in the past couple of months, we have seen these decisions from these consular posts, even for applicants who just returned to the home country to apply for an immigrant visa after having an approved I-601A waiver for spending years in the US unlawfully. The consequences are particularly devastating for immigrant visa applicants applying to join their US citizen children in the US (Category IR-5). For them, there is no immigrant waiver available and because they have expressed an intent to immigrate, they will not obtain a nonimmigrant waiver for a long time. Similarly, the consequences are devastating for those applying for an employment-based immigrant visa. Usually, they do not have a “qualifying relative” in the US – either a spouse or parent who is a US citizen or green card holder – and so are not eligible for an immigrant waiver. Even when an immigrant waiver is available, it is now taking nearly 3 years to adjudicate I-601 immigrant waiver applications.

Here is a standard consular formulation to justify the “90 Day” decision: Y “entered the US under the visa waiver program by misrepresenting her purpose of travel. Within one month of entering the US in 2007, [Y] started to work in violation of her nonimmigrant status. Under 9 FAM 302.9-4, consular officers can presume that applicants who violated nonimmigrant visa status within ninety days of entering the United States misrepresented their purpose of travel. [Y] was given an opportunity to rebut the presumption of misrepresentation but did not do so to the consular officer’s satisfaction.” Or “he admitted to the interviewing officer that he traveled to the United States in 2000 on a tourist visa and immediately started working unlawfully in a store. He was given the opportunity to rebut the presumption of misrepresentation by his admitted activities, but he could not do so. The refusal was reviewed by a consular manager who concurred with the finding.”

There are serious legal deficiencies with the 90 Day Rule and fertile grounds to try to attack these findings. CBP, the agency which interacted with the applicant personally at the airport or land border and sometimes memorialized that interaction in a Sworn Statement, did not make such a misrepresentation finding. Sometimes, CBP will turn a person around at the airport, making a Section 212(a)(7)(A) and/or expedited removal order determination, but not make a 212(a)(6)(C)(i) decision. Sometimes, there is a situation where the applicant had previously been refused a visitor visa by a consular officer. However, the consul only denied the visa under 214(b) or 212(a)(9)(B) for unlawful presence, not 212(a)(6)(C)(i). In other words, that previous consular officer was aware of the earlier entry to the US and was in a better position to review the circumstances in question because of the relative recency of events. However, she came to the conclusion that there was no violation of the 90 Day Rule. Relying on that previous consular officer’s decision, the US Citizen adult child then submits an immigrant visa case for her parent.  

There are other ways to try to attack these consular findings. The 90-day rule is a rebuttable presumption and every applicant has the right to establish his or her eligibility. You have the right to rebut the presumption by gathering evidence: even if you are denied at your immigrant visa interview, you have a right to request reconsideration later and present evidence which must be reviewed by the consular officer. Of course, what makes it difficult is that the events took place so long ago, and so to try to gather evidence that your intent at the time of entry was truly visiting a relative or tourism is a huge challenge, but not impossible.

If you have been impacted by the 90 Day Rule or are concerned that you might be in the future, contact us.