How Does the 90-Day Rule Impact the Transition from B1/B2 to EB-5 Visa?

Posted on Jun 14, 2024 by Rakesh Patel and Jacqueline Trevino

There are various visa options for foreign nationals, each tailored to a specific purpose. The B1/B2 visa is commonly used for short-term business and tourist visits to the US, while the EB-5 visa provides a pathway to permanent residency through a qualifying investment. If you are currently in the US on a B visa and are now considering applying for an EB-5 visa, it is crucial to understand the implications of the 90-day rule.  

Understanding the 90-Day Rule 

USCIS uses the 90-day rule to assess the intentions of individuals entering the US on non-immigrant visas such as the B visa. This rule presumes that any adjustment of status within 90 days of entry may indicate willful misrepresentation or fraud at the time of visa issuance or entry. 

Single vs. Dual Intent Non-Immigrant Visas 

When applying for a B visa, you must prove non-immigrant intent (or single intent) when speaking to a consular or DHS officer. This includes showing you have strong ties to your home country, no intent of abandoning your residence abroad, and plan to leave the US after the authorized stay, which is a maximum of 6 months for B visa holders. 

Some visas, like H-1B or L-1, allow for dual intent. These visa holders can use their visa and still intend to relocate to the US on a permanent basis. Therefore, they are not subject to the 90-day rule.  


Why it Matters for EB-5 Investors 

Violating this rule can make it difficult or impossible to obtain other immigration benefits in the future. According to the US Department of State Foreign Affairs Manual, if you engage in conduct inconsistent with your non-immigrant status within 90 days of entering, you may be deemed inadmissible for a green card or permanently barred from reentering the US. 

An individual could violate the terms of their B visa if they enter with the sole purpose of applying for permanent residence within 90 days of arrival. Engaging in unlawful employment, enrolling in a course of study, and marrying a US citizen are examples of conduct that will violate the terms of a B visa. 

If an individual engages in behavior inconsistent with their non-immigrant status more than 90 days after being admitted to the US, there is no automatic presumption of misrepresentation. Individuals can change their minds about applying for a green card only after entering the US because filing an EB-5 application demonstrates an intent to reside permanently in the US.  

Honesty is crucial when engaging with USCIS, and consulting with an experienced immigration attorney ensures that any applications follow USCIS regulations and guidelines.  

If you have any questions regarding transitioning to an EB-5 visa, please email us at and