New Policy, New Dangers

It's no secret that, for visa categories not allowing for dual intent (applying for temporary status with the possibility of seeking adjustment to permanent residence later), there can be harsh penalties for misrepresentation of intent upon applying for a visa or entry into the United States. An aspiring visa applicant may even be barred permanently from the U.S. if they are found guilty of such misrepresentation. What has changed, however, is the window for the Department of State's (DOS) ability to classify any status violation or inconsistent conduct as misrepresentation.

Prior to the New 90-Day Rule

Prior to September 1, 2017, the DOS Foreign Affairs Manual (FAM) had a 30/60 day rule, under which misrepresentation was presumed if a nonimmigrant engaged in conduct inconsistent with his or her visa classification within 30 days of entry into the U.S. The presumption could be overcome, but the nonimmigrant bore the burden of proof. If the nonimmigrant engaged in "inconsistent conduct" within 60 days of entry, misrepresentation could be found if the facts of the case established a reasonable belief that the nonimmigrant misrepresented his or her intentions. Inconsistent conduct that occurred more than 60 days after entry into the United States was not considered grounds for a finding of misrepresentation.

Therefore, any conduct inconsistent with one's visa category or any applications for adjustment of status or change of status were viewed in light of the 30/60 day time-frame to assist consular officers in judging the original intent of the foreign national and whether misrepresentation had occurred. 

Inconsistent conduct, as largely defined under both the previous and the new rule, may include:

• Engaging in unauthorized employment.

• Enrolling in a course of academic study if doing so is not authorized under one's status (e.g. B Visitor status)

• Marrying a U.S. citizen or Lawful Permanent Resident (green card holder) and assuming residence in the U.S. after entering under any status prohibiting dual intent.

• Engaging in any activity requiring a change of status or an adjustment of status without first acquiring one.

So, if all of this was true before, how has this guidance been affected with the DOS FAM's introduction of the 90-day rule?

Changes Under the 90-Day Rule

On September 1, 2017, the Department of State updated 9 FAM 302.9-4(B)(3) to provide a new guidance relating to the term “misrepresentation.” The 90-day rule is mainly one of expansion. The same criteria for suspected misrepresentation and the penalties involved mostly apply, but the time and reach of when an affected nonimmigrant may be vulnerable to such action has been inflated many times over.

Under the new 90-day rule, there is a presumption of misrepresentation if the foreign national has engaged in inconsistent conduct within a full 90 days following the nonimmigrant's entry into the U.S.

More so, there is no longer any passage of time by which consular officers are instructed not to find grounds for misrepresentation, meaning that nonimmigrants will always be vulnerable to action if an official takes a case's facts to suggest a reasonable belief of misrepresentation. It should also be noted, however, that such an action will generally be less likely the longer one has been in the U.S. since his or her entry. 

In other words, if the is evidence that the foreign national is involved in inconsistent conduct after 90 days, he or she may still be charged with misrepresentation.

It is important then that nonimmigrants in the U.S. be aware that engaging in any such filings for adjustment of status or conduct inconsistent with their initially stated intent may make them vulnerable to a misrepresentation finding. Moreover, if a nonimmigrant does decide to continue with any of these actions, he or she should be prepared to present evidence that an event that occurred after arrival is what has resulted in the changing of plans so that doing so does not betray the original intent.

Important Details Regarding the Rule Change

The introduction of the 90-day rule brings with it various questions as to how nonimmigrants and attorneys should process and act on these changes. 

It should be noted that the 90-day rule is not retroactive. In a field cable sent by the DOS to consular offices on September 16th, the department clarified that the new rule only applies to adjudications occurring after the rule's effective date of September 1st, 2017. 

In addition, the DOS reminds consular officers that they must give the foreign national the opportunity to present evidence to rebut the presumption or reasonable belief that he or she made a willful misrepresentation on a prior visa application or in the foreign national's application for admission to the United States before a misrepresentation can be found. If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, the consular post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

How the 90-day rule relates to USCIS filings

An important consideration is how and if this new rule will affect United States Citizen and Immigration Services (USCIS) filings, especially concerning whether or not consular processing abroad for obtaining Lawful Permanent Resident (LPR) status would be a safer option than simply filing for adjustment of status.

While the 90-day rule is a DOS policy, other departments such as USCIS may consider such policies in their own adjudications. Though it is not yet known whether USCIS will adopt the new rule, choosing this route for some cases may be advisable, even if it means withdrawing an adjustment of status application and submitting a Form I-824 request that the approval notice of the immigrant visa petition be sent to a U.S. consular post.  

It would also be helpful to note that in its recognition of the the 30/60 rule (USCIS has not yet updated its policy manual to acknowledge the FAM update), USCIS viewed the DOS's guidance as a useful "analytical tool that may be helpful in resolving in a particular case whether a person's actions support of finding of fraud or misrepresentation." (Ch. 3.a.3) However, USCIS instructed that the FAM guidance may not be used to deny an application, although individuals falling as suspect under the DOS 30/60 day rule may be required to present evidence to assuage such concerns. 

Therefore, it is crucial that vulnerable nonimmigrants be aware that USCIS actions in finding alleged misrepresentation may also be expanded by the new rule, and that those possibly subject to scrutiny be prepared to present evidence in vindicating their behaviors.

Conclusion

This new rule as introduced by the DOS extensively broadens the U.S. government's reach in seeking out alleged misrepresentation of intent, and all nonimmigrants within the U.S., as well as their involved attorneys, should be aware of the new implications and risks involved. It is without doubt that this change will result in an enlarged abundance of misrepresentation findings, along with the severe penalties that accompany them. 

Perhaps most essential is that all nonimmigrants be aware of the inherent dangers when applying for adjustments of status or engaging in the described conducts inconsistent with their declared intent at visa application or at the time of arrival. If they choose to go forward with such described actions, they should have evidence prepared for the effective rebuttal of any allegations that may threaten their lifelong privilege to travel to the U.S. 

As always, stay informed and seek the advice of your legal counsel when engaging in any action that may act as a flag for consular officials.