The Department of State (DOS) has updated the Foreign Affairs Manual (FAM) to change the criteria determining the conduct that could give rise to a presumption of “willful misrepresentation,” making visa applicants “inadmissible” to the U.S. under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA).
Under the new “rule,” 9 FAM 302.9-4(B)(3), if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States, a presumption of willful misrepresentation will arise. The burden would then be upon the alien who was found to have violated her status within 90 days of entry “to establish that his or her true intent at the time of the suspected misrepresentation was permissible in [his or her] nonimmigrant status.” FAM 302.9-4(B)(3)(h)(2).
Until September 2017, this presumption would have arisen only for conduct taking place within 30 days of entering the US. The so called 30/60 “rule” stated that if such a violation occurred within 30 days of entry, a consular officer “may presume that the applicant misrepresented his or her intention in seeking a visa or entry,” (9 FAM 302.9-4(B)(3)(g)(1)) but the foreign national would have been given the opportunity to prove otherwise.
It is important to note that this presumption has never been the official rule for the Department of Homeland Security (DHS), nor is the new 90-day rule applicable to DHS, meaning that it applies only to foreign nationals applying for a visa outside the United States. Nevertheless, the 30/60 Rule has influenced DHS officials in the past, and the new 90-day Rule might also be influential. Furthermore, many are concerned that DHS might later adopt this rule and apply it to foreign nationals already in the United States.
For purposes of applying the 90-day Rule 9 FAM 302.9-4(B)(3), “conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:
(i) (U) Engaging in unauthorized employment;
(ii (U) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
(iii) (U) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
(iv) (U) 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.”
So, what does all of this mean in practice?
Let’s see a couple of examples that may clarify.
Example 1. A foreign national enters the United States on a tourist visa and is granted B-2 status for six months. On the 75th day of her stay in the United States, she gets a job at a local restaurant. Just before the expiration of her six-month stay, she returns to her home country, Japan. She later decides to come to the United States to study at a university in F-1 status. While at the U.S. Consulate, she is asked if she has ever worked in the United States, and she answers honestly that she worked while in tourist status the last time she was in the United States. Under the new 90-day rule, this will give rise to a presumption of willful misrepresentation when she entered the United States. In simpler terms, this means that the government is presuming that she either lied or tried to deceive the officer when she first entered with a tourist visa. Even if she were completely truthful and did not do anything wrong when she entered, the burden of proving that she did not lie or misrepresent reality would then be on her. If she cannot prove that she did not misrepresent, then she will be found inadmissible to the United States, and the student visa will be denied. Not only this, but she will be considered ineligible to come to the United States in the future unless a waiver of her inadmissibility is approved. Though she might even have had some difficulty under the old rule, the consequences under the current rule might be far more severe, affecting a wide range of visa applications, not just an F-1.
Example 2. Let’s imagine that an Italian citizen would take 12 months to get her fiancé petition (I-129F) approved. The fiancé petition (I-129F) is the appropriate method for her to come to the United States. She and her fiancé decide that 12 months is too long so the Italian citizen decides to come to the United States to get married using ESTA. Coming to the United States on ESTA to get married is, by itself, a permitted activity as a tourist. After getting married, the foreign national and her fiancé intend to file for adjustment of status (AOS) to apply for a green card right after the marriage to avoid the long wait outside the United States. When the foreign national goes through customs using ESTA, she is asked just one question: “Are you married to a U.S. citizen?” She says that she is not married to a U.S. citizen now, but she plans on marrying her fiancé during her stay in the United States. The officer offers his best wishes and allows her to enter the United States for 90 days in tourist status. As planned, once in the United States, the couple gets married 64 days after entry and applies for adjustment of status just before the 90-day tourist status expires.
At a minimum this would constitute having “pre-conceived intent” which by itself would not prevent the adjustment of status from being approved even though it is considered a negative factor. Matter of Cavazos, 17 I. & N. Dec. 215, 1980 BIA LEXIS 2 (B.I.A. Jan. 8, 1980). However, if at some point in the future USCIS decides to apply the DOS 90-day rule to DHS, this conduct would give rise to a presumption of misrepresentation that could lead to the denial of the case unless a waiver is granted. If the Italian citizen cannot provide sufficient evidence to overcome the presumption, then her case would then be denied. Note that having “pre-conceived intent” does not necessarily mean that one has committed fraud, but for practical purposes it increases the likelihood of such a finding. (See 9 FAM 302.9-4(B)(3)(g)(1)(c) which states that “the fact that an alien’s subsequent actions are inconsistent with those stated at the time of visa application or admission or in a filing for an immigrant benefit does not necessarily prove that the alien’s intentions were misrepresented at the time of application or entry.”)
These issues are complex, and you should not make any related decisions on your own. Consult with a qualified lawyer for advice on your specific situation.
For more information on new 90-day rule, contact Craig Dobson
Crystal & Giannoni-Crystal, LLC is a “lawyers for lawyers and international matters” boutique law firm. The firm has offices in Charleston, SC, New York, NY, Washington, DC, and Savannah, GA. The firm is available to serve clients – in association when needed with local counsel – with transactions in Italy, Spain, Germany, France, Portugal, UK, Mainland China, Hong Kong, India, Indonesia, Australia, Latin America, Brazil, and Argentina. In the United States, we are able to offer our full list of services in New York City (including the Bronx, Brooklyn, Manhattan, Queens, and Staten Island) and Westchester County, in the District of Columbia, and in South Carolina, including Aiken County, Anderson County, Beaufort County, Berkeley County, Charleston County, Dorchester County, Florence County, Greenville County, Pickens County, Horry County, Richland County, Spartanburg County, Sumter County and York County, and the communities of Charleston, Myrtle Beach, Sumter, Florence, Columbia, Lexington, Aiken, Rock Hill, Greenville, Spartanburg, Anderson, Pickens, Hilton Head, and in Georgia, including Atlanta, Savannah and all of Chatham county.