Reuben S. Seguritan

90 Day Misrepresentation Rule

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Under the recently updated Foreign Affairs Manual (FAM), any visa holder who engages in conduct inconsistent with the terms of his visa within 90 days of entry is presumed to have willfully misrepresented his intention before the Consular Officer during the nonimmigrant visa interview or before the Border Officer upon entering the country.

Based on the new guidelines, unless one is holding an H-1B or an L-1 visa or other visa types that allow dual intent, the following actions may be inconsistent with one’s nonimmigrant visa status: (1) engaging in unauthorized employment; (2) enrolling in a full course of academic study without authorization and/or authority and/or appropriate change of status; (3) marrying a US citizen or lawful permanent resident within the 90-day window; and (4) 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.

Under the Immigration and Nationality Act, “any alien who, by fraud or 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 benefit provided under this Act is inadmissible.”

What this means is that if B-1/B-2 visa holders enroll in any school or marry someone and adjust status or take up residence in the US within the 90-day period, they will be presumed to have willfully misrepresented their intent to “be a tourist” in the country. This new rule will also affect those people from the 38 countries currently under the Visa Waiver Program like France, Germany, Japan, Australia, Italy, South Korea, Singapore and UK, among others. The Visa Waiver Program admits visitors for a 90-day period. If any person from these countries gets married to a US citizen within the 90-day period and subsequently applies for adjustment of status, he is presumed to have misrepresented himself at the time of admission to the US.

This new rule changed the previous shorter timeframe of 30/60 days. Under the old rule, if a foreign national filed an adjustment or change his status within 30 days from entry into the US, it created a rebuttable presumption that the person misrepresented his intentions. If the inconsistent act happened more than 30 days but less than 60 days after entry to the US, there was no presumption of misrepresentation although the government could infer that there was intent to misrepresent. If the inconsistent act happened outside the 30/60-day window, there was no misrepresentation at all.

Under the new rule, no presumption of willful misrepresentation would generally arise if a foreign national engages in inconsistent conduct more than 90 days after entry to the US. But, if the facts of the case give rise to a “reasonable belief” that the foreign national misrepresented the purpose of his travel at the time of the visa application or admission to the US, the DOS will request an Advisory Opinion. 

It is important to note that this is a Department of State guideline. Although the Department of Homeland Security (DHS) and its branches like the USCIS and ICE are not bound by the policies of another agency, it is possible that USCIS may release its own parallel guidance. As of right now, USCIS has not yet updated its Policy Manual to reflect the change.

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, log on to www.seguritan.com or call 212-695-5281. He is also on Facebook:www.facebook.com/reubenseguritanlawoffice/ and Twitter: https://twitter.com/ReubenSeguritan)

 

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