Why It is Critical to Understand the New 90-day Rule Regarding Misrepresentation Based on Conduct

What is the 90-day rule? The 90-day rule is crucial for immigrants to understand, especially when it comes to potential misrepresentation.

The Department of State (DOS) recently revised the Foreign Affairs Manual (FAM) to include an updated section called “Inconsistent Conduct Within 90 Days of Entry.”

Section 9 FAM 302.9-4(B)(3) applies to foreign nationals in the US “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 DHS when applying for admission or for an immigration benefit.”

The exact language is as follows:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, 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.

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 should “bring the derogatory information to the attention of the Department for potential revocation.”

Why the 90-day rule is of critical importance:
The revised rule means that DHS and DOS will look now closely at an individual’s activity in the first 90 days after entry to the US. If an individual indicated that their intent to travel to the US was for tourism and within the first 90 days takes action to change their status (i.e., applies to change status to a student or a non-immigrant worker or marries a US citizen, etc.) it could result in severe repercussions, including being barred from entry to the U.S. for life. (See section 212(a)(6)(C) of the Immigration and Nationality Act). Thus, it is crucial that foreign nationals and immigration attorneys fully understand the new FAM guidelines.

What to keep in mind:

Inconsistent Conduct
Conduct that violates the 90-day rule or is otherwise inconsistent with a foreign national’s nonimmigrant status includes:

  • Enrolling in a course of academic study if unauthorized to do so;
  • Engaging in unauthorized employment;
  • Marrying a U.S. citizen or Legal Permanent Resident (LPR) and taking up residence in the U.S. after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and/or
  • 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.

Violating the 90-day Rule:

Presumption of Willful Misrepresentation Based on Timing of Conduct
The FAM states that there will be a presumption of willful misrepresentation based on an alien’s activity within 90 days after entry to the U.S. The burden of proof falls on the alien, meaning that he or she must “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.” Consular officers will give an alien “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.”

What happens after 90 days?

If an alien engages in conduct inconsistent with their nonimmigrant status more than 90 days after entry into the U.S., then there is no presumption of willful misrepresentation (though U.S. consular officers may still seek to revoke the visa upon “reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission.”)

Exercise caution when filing for adjustment of status.
From the updated guidelines, it seems that DOS is targeting aliens who enter through the Visa Waiver Program (which permits travel for tourism or business for stays ≤ 90 days) or on a B-1/B- 2 visitor visa and apply to adjust to LPR status. Please note that USCIS’ Adjudicator’s Field Manual has not been updated to match the new FAM guidance.

It should be noted that the Board of Immigration Appeals has established that in the case of adjustment of status of immediate relatives, the equity of the immediate relative relationship takes precedent over “preconceived intent.”  However, foreign nationals who have entered the U.S. on a B or F visa or any other nonimmigrant visa that prohibits immigrant intent should take caution regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry.  Even if such filings are made 90 days after entry, the individual should demonstrate that something happened to cause them to alter their original plans and thus to want to change their immigration status.

30/60 Day Rule:  What happened?
The updated FAM has done away with the “30/60 day rule” regarding adjustment of status after entry on a nonimmigrant visa.  The previous 30/60 day rule could be summed up as follows:

  • If an alien files for adjustment within 30 days of entry, the government can presume that the person misrepresented their intention in seeking a visa or entry. A finding of misrepresentation or fraud can result in a lifetime bar to US entry.
  • If the act occurs more than 30 days but less than 60 days after entry, no presumption of misrepresentation results. However, if there is reasonable belief that of misrepresented intent, then the alien must present evidence to the contrary.
  • If the act occurs more than 60 days after admission into the US, there is generally no basis for a misrepresentation or inadmissibility finding.

USCIS’ policy manual has not been updated with the 30/60 day rule, but it may be in the future. The FAM makes no mention of retroactive application of the change but stated that it is effective September 1, 2017.

Foreign nationals who depended on the 30/60 day rule and have pending adjustment of status applications should consult an immigration attorney to plan how to best handle their cases.

Is consular processing for an immigrant visa a better option for me?
Although there is no certainty that USCIS will adopt this new DOS rule, securing LPR status through consular processing abroad is becoming the preferred option over filing for adjustment of status, especially considering potential delays from USCIS expanding in-person interviews for adjustment of status applications. While cases vary, it may be advisable to withdraw your adjustment of status application and file a Form I-824 to request that the approval notice of the underlying immigrant visa petition be sent to a U.S. consular post.

To learn more about asylum law and immigration law, contact our asylum attorneys and immigration lawyers today.

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