How soon can I petition my fiance after we get married?

[sancocho 15]

I just got naturalized recently and I want to petition my fiance as soon as possible. Fiance is currently on a tourist visa and he's been here for 8 months (overstayed the 6 months allowed for his visa).

We are getting married at the end of the month. My question is how soon after getting married can I submit an I-130 for him?

 

A lawyer friend told him that we should wait for 90 days after getting married before submitting a petition. However, all the research I've done says that the 90 day rule starts from the day he arrived in the US and not from the day we get married. Like I said, he's been here for 8 months now. Could someone please confirm and enlighten me if there is another 90 day rule that I am not aware of?

 

Also  would it be okay to file a petition for my fiance if I've only been naturalized recently and that intend to submit a petition for him a couple of weeks after we get married?

[Ben&Zian 4,398]

4 minutes ago, mcawesomeville said:

I just got naturalized recently and I want to petition my fiance as soon as possible. Fiance is currently on a tourist visa and he's been here for 8 months (overstayed the 6 months allowed for his visa).

We are getting married at the end of the month. My question is how soon after getting married can I submit an I-130 for him?

 

A lawyer friend told him that we should wait for 90 days after getting married before submitting a petition. However, all the research I've done says that the 90 day rule starts from the day he arrived in the US and not from the day we get married. Like I said, he's been here for 8 months now. Could someone please confirm and enlighten me if there is another 90 day rule that I am not aware of?

 

Also  would it be okay to file a petition for my fiance if I've only been naturalized recently and that intend to submit a petition for him a couple of weeks after we get married?

~Moved to Adjustment of Status Case Filing and Progress Reports~

 

 

The day after if you so choose to. There is no such "90 day rule". Only 90 days is for K-1 recipients to marry their petitioners.

Edited August 23, 2018 by Ben&Zian

[Crazy Cat 42,514]

Did the attorney say why you should wait 90 days?

[sancocho 15]

8 minutes ago, missileman said:

Did the attorney say why you should wait 90 days?

This is what that attorney said:

Quote

There is no law preventing you from doing it earlier but there is a 30 60 90 day "guidance" to immigration officials that basically cause them to be more cautious with cases that come very quickly after marriage.

 

He said it is a "new rule" that took effect December last year.  I have a feeling this attorney does not know what he is talking about.

[geowrian 22,338]

That is a DOS rule/policy. AOS is handled by USCIS (under DHS), not the DOS.

[mushroomspore 3,044]

8 minutes ago, mcawesomeville said:

This is what that attorney said:

He said it is a "new rule" that took effect December last year.  I have a feeling this attorney does not know what he is talking about.

People have been talking about that "30/60/90" day thing for a really long time now. It is not new and it's not an official USCIS policy. 

 

Quoted from the USCIS Policy Manual (emphasis mine):

 

Quote

3. The U.S Department of State’s 90-Day Rule

 

The U.S. Department of State (DOS) developed a 90-day rule to assist consular officers in evaluating misrepresentation in cases involving a person who violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her intentions at the time of the visa application or to the immigration officer at the port of entry. 

 

The 90-day rule is not a “rule” in the sense of being a binding principle or decision. The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures. 

Here is also an article from NAFSA.org (published October 2017) explaining the EXPANSION of the 30/60/90-day guideline. Another quote:

 

Quote

DOS Policy and DHS Determinations and Adjudications

The 90-day rule is a policy of the Department of State regarding eligibility for visa issuance. Although the Department of Homeland Security (DHS) and its branches (USCIS, ICE, CBP) are not bound by the policies of another agency, they can consider such policies when making their own independent determinations and adjudications.

Volume 8, Part J of the USCIS Policy Manual, for example, presents that agency's internal guidance on the interpretation and application of misrepresentation under INA 212(a)(6)(C)(i). That Part instructs USCIS officers in general that,

"As long as there is a reasonable evidentiary basis to conclude that a person is inadmissible for fraud or willful misrepresentation, and the applicant has not overcome that reasonable basis with evidence, the officer should find the applicant inadmissible.

This article then goes on to quote the exact same paragraphs from the USCIS policy manual quoted above.

 

As geowrian noted, it is a Department of State rule, not USCIS. Department of State does not have a hand in adjudicating adjustment of status or other immigration applications. That responsibility only belongs to USCIS.

Edited August 23, 2018 by mushroomspore