The 90-day policy is a critical but informal guideline that can shape an E-2 investor's path to U.S. admission or change of status—understanding it can prevent costly denials and misrepresentation findings.

What is the 90-day policy?

The 90-day policy is an informal evidentiary presumption used by consular officers, Customs and Border Protection (CBP), and adjudicators to infer whether a nonimmigrant had a preconceived intent to change status or pursue a different visa immediately after entry to the United States. It is not a statute; rather, it is an administrative practice that helps officials decide when a short timeframe between entry and a change in circumstances suggests the traveler misrepresented their intent at admission.

Practically, the rule is applied like this in many adjudications: actions taken within the first 30 days after entry are highly likely to be viewed as part of the original intent; actions taken between 31 and 90 days raise a rebuttable presumption that the traveler misrepresented intent at entry; and actions after 90 days are less likely to produce a presumption of misrepresentation. This creates a simple timeline that adjudicators use, but it is important to remember that the guideline is fact-specific and not absolute.

Where the 90-day policy comes from and how it is used

The 90-day timing guideline evolved from Department of State and immigration adjudication practice rather than from a single statutory source. It is a pragmatic tool that helps officials assess preconceived intent—whether a person entered the United States under false pretenses, such as entering on a tourist visa with the plan to instantly start working or change status.

Adjudicators use this guideline alongside statutory provisions, most notably the immigration inadmissibility ground for misrepresentation under INA 212(a)(6)(C)(i). A finding of misrepresentation can carry severe consequences, including visa refusal or ineligibility for future admission, so the 90-day guideline can have real-world consequences.

Official guidance on assessing nonimmigrant intent and misrepresentation is available from government sources such as the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State, but the 90-day rule itself typically appears in practice notes, legal memoranda, and adjudicator training rather than in a single regulation.

How the 90-day policy specifically affects E-2 visa applicants

The E-2 investor visa requires that the applicant be a citizen of a qualifying treaty country and that he or she intends to enter the U.S. solely to develop and direct operations of an enterprise in which a substantial investment has been made. Crucially, the E-2 visa is a nonimmigrant classification that requires evidence of both the investment and the applicant’s nonimmigrant intent (or at least the absence of misrepresentation regarding that intent).

For someone who recently entered the U.S. on a tourist visa (B-1/B-2) or under the Visa Waiver Program (ESTA), then quickly seeks E-2 status—either by applying at a U.S. consulate abroad after a short trip, or by filing a change of status with USCIS—the 90-day policy can be invoked to infer that the applicant intended to pursue E-2 status all along. If a consular officer or USCIS adjudicator applies this presumption and is not convinced by the applicant’s evidence, the result can be a visa denial, a 221(g) administrative refusal, or even a finding of misrepresentation under INA 212(a)(6)(C)(i).

Common scenarios where applicants run into trouble include:

  • Entering the U.S. on a B-2 tourist visa to finalize an investment and shortly thereafter applying for E-2 status.
  • Applying for an E-2 visa at a consulate less than 90 days after returning from a U.S. visit during which substantial business activities occurred.
  • Filing a change of status with USCIS to E-2 within a short period after admission as a visitor and simultaneously beginning business operations that are inconsistent with visitor intent.

Why adjudicators are concerned

Adjudicators worry about preconceived intent because the U.S. nonimmigrant visa system relies on honest disclosure of the traveler’s true purpose. A visitor visa is issued on the basis that the traveler will leave once the visit is over. If an individual plans all along to engage in activities inconsistent with that visa classification—such as working or running a business—then the integrity of visa adjudication is undermined.

Where the 90-day policy is triggered, adjudicators will look for evidence that contradicts the presumption of misrepresentation. If the evidence is inadequate or inconsistent, officials may determine that the applicant misrepresented his or her intentions at the time of entry.

How to rebut the 90-day presumption

An applicant who faces a 90-day presumption can successfully rebut it with credible, contemporaneous documentation and a plausible timeline showing that the decision to invest and pursue E-2 status occurred after entry or was otherwise not part of the original intent. Useful evidence can include:

  • Bank records and wire transfers showing when funds were moved from personal accounts to business accounts or escrow after entry.
  • Signed lease agreements or property acquisition documents dated after entry that show when the commercial premises were secured.
  • Corporate formation documents and meeting minutes dated after entry that demonstrate the sequence of events.
  • Paid invoices, contractor agreements, or hiring records showing that employees or contractors were retained after arrival.
  • Expert affidavits from accountants, attorneys, or business consultants who can attest to the timing and nature of the investment decisions.
  • Consistent, credible personal statements that honestly explain why decisions were made when they were and why the applicant did not intend to misrepresent their purpose at entry.

Documentation should be contemporaneous where possible—documents created after the fact can be less persuasive unless they are corroborated by independent records. The key is to show that the investment events and intent to pursue E-2 classification arose after entry or that circumstances materially changed following admission.

Practical strategies for E-2 applicants

Because the 90-day policy is an adjudicative practice, smart planning can reduce risk. The following strategies are commonly recommended by experienced E-2 counsel:

  • Avoid using a B-2 tourist visa to conduct business. If the primary purpose is an investment or to direct a business, it is safer to enter the U.S. as a B-1 business visitor or ESTA Waiver Business (WB) rather than B-2 pleasure visitor or ESTA Waiver Tourist (WT).
  • Consider timing. Waiting at least 90 days after entry before initiating actions that change the nature of the trip or filing for consular processing may reduce the likelihood of a presumption. However, waiting does not guarantee success—context and documentary support remain crucial.
  • Prepare a clear chronology. A well-documented timeline showing when funds were committed, when contracts were signed, and when business operations actually began helps rebut allegations of preconceived intent.
  • Keep business activity consistent with the visa. B-2 visitors must avoid conducting business that is inconsistent with the terms of a tourist visa (e.g., active management or employment) while in the U.S.
  • Work with counsel early. An experienced E-2 attorney can advise on whether to pursue consular processing or a change of status, how to document timelines, and when to file to minimize risk.

Consular processing vs. change of status: how the rule plays out

Applicants can either apply for an E-2 visa at a U.S. consulate abroad (consular processing) or, if already in the U.S., file Form I-129 (for E classification) for a change of status with USCIS. Each route interacts with the 90-day guideline differently:

  • Consular processing: A consular officer will review the applicant’s overall travel history and recent U.S. admissions. If the applicant recently visited the U.S. as a B-2 pleasure tourist and then applied for E-2 soon after, the officer may apply the 90-day presumption. Consular officers have broad discretionary authority and can request extensive documentation or issue a refusal under INA 214(b) or a finding of misrepresentation under INA 212(a)(6)(C)(i).
  • Change of status with USCIS: USCIS adjudicators also consider whether the applicant misrepresented intent at entry. Filing a change of status shortly after entering as a visitor increases the risk of an adverse finding. In some cases, USCIS may approve a change of status but denial remains possible if documentation is insufficient.

Real-world examples

Example 1: An investor from a treaty country flies to the U.S. on a B-2 tourist visa, negotiates a lease and hires contractors within two weeks, and then returns home to apply for an E-2 visa. The consular officer notes the rapid business activity during the visit and may conclude the investor had preconceived intent to seek E-2 status, which could lead to additional scrutiny or a denial unless the applicant provides convincing evidence showing the investment decision occurred after arrival.

Example 2: An applicant comes to the U.S., conducts exploratory meetings, and leaves. Three months later, after obtaining definitive contracts and transferring funds, the applicant applies for an E-2 visa. Because more than 90 days have passed and the documentation clearly shows the investment was formalized after the visit, the consular officer may be less likely to infer misrepresentation.

Common mistakes to avoid

Several missteps commonly lead to trouble with the 90-day rule:

  • Engaging in full-time managerial work or employment while admitted as a visitor.
  • Filing for a change of status or applying for a visa immediately after a U.S. visit without clear documentation explaining the sequence of events.
  • Relying on after-the-fact, self-authored documents without independent corroboration.
  • Failing to consult counsel when time-sensitive business decisions coincide with U.S. visits.

Questions an applicant should prepare to answer

When the 90-day presumption is raised, adjudicators typically want clear, consistent answers to these questions:

  • When exactly were funds transferred and to whom?
  • When were contracts signed, and when did any business activity actually begin?
  • Why was a visit to the U.S. necessary at the time it occurred?
  • What changed between the visit and the decision to pursue E-2 status?

Where to find authoritative information

Applicants can learn more from primary government resources about visa policy, nonimmigrant intent, and inadmissibility grounds:

Understanding the 90-day guideline and preparing a clear, well-documented case can dramatically improve an E-2 applicant’s chances of success. Thoughtful timing, consistent records, and early legal advice help confront the presumption and present a credible narrative of the investment decision.

Skilled counsel can review specific facts, suggest the best filing strategy, and help put together the proof needed to make the strongest possible E-2 presentation.

Please Note: This blog is intended solely for informational purposes and should not be regarded as legal advice. As always, it is advisable to consult with an experienced immigration attorney for personalized guidance based on your specific circumstances.