State Department Issues New 90-Day Rule for Misrepresentation
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
The Department of State recently updated the Foreign Affairs Manual (FAM) at 9 FAM 302.9-4(B)(3) with a new 90-day rule on misrepresentation, related to those in the United States "who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to [the Department of Homeland Security] when applying for admission or for an immigration benefit."
The FAM now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” that states, "If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry…you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry." This appears to have discarded the prior "30/60-day” rule with respect to adjustment of status after entry on a nonimmigrant visa. That prior rule held that if a person filed for adjustment within 30 days of entry, the government could presume that the person misrepresented his or her intention in seeking a visa or entry. A finding of misrepresentation or fraud could result in a lifetime bar to entering the United States. If the act occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation arose. However, if the facts showed the reasonable belief that intent was misrepresented, the person must present countervailing evidence. If the act occurred more than 60 days after admission into the United States, generally there was no basis for a misrepresentation or inadmissibility finding.
For purposes of applying the new 90-day rule, conduct that violates or is otherwise inconsistent with nonimmigrant status includes:
- Engaging in unauthorized employment;
- Enrolling in a course of academic study, if such study is not authorized (e.g., B Visitor status);
- Marrying a U.S. citizen or permanent resident and taking up residence in the United States after entering in nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
- Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.
The section explains that if a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit," they are directed to "bring the derogatory information to the attention of the Department for potential revocation."
Immigration practitioners note the potentially devastating consequences of this new guidance. The Immigration and Nationality Act states that anyone who, by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the United States.
The related section of the FAM is located here.