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New DOS rule regarding alien conduct inconsistent with his or her non-immigrant status within 90 days of entry


On September 1, 2017, the U.S. Department of State (“DOS”) updated the Field Adjudicators Manual (“FAM”) by adding a new rule so as to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, the US Consular officer 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. The language utilized in this new rule has potentially drastic consequences as the Immigration and Nationality Act states that any alien 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 U.S.

For purposes of applying this new 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes: Engaging in unauthorized employment; Enrolling in a course of academic study, if such study is not authorized; Marrying a U.S. citizen or a lawful permanent resident and taking up residence in the U.S after entering on nonimmigrant B (Visitor), F (Student), through the Visa Waiver Program (which authorizes travel for tourism or business for stays of 90 days or less without first obtaining a visa) or any other status prohibiting immigrant intent. Furthermore, even if such filings occur after 90 days after entry, the alien may need to demonstrate that an event occurred, which caused them to change plans and desire to change U.S. immigration status.

The updated FAM appears to have made redundant the prior “30/60 day rule” which held that if an alien files for adjustment within 30 days of entry, the government can presume the person misrepresented his or her intention in seeking a visa or entry. If the act occurs more than 30 days but less than 60 days after entry, no presumption of misrepresentation arises. However, if facts show the reasonable belief that intent was misrepresented, then the alien must present countervailing evidence. If the act occurs more than 60 days after admission into the United States, there is generally no basis for a misrepresentation or inadmissibility finding.

The FAM does not set out whether this new guidance will have retroactive application but indicates that it is effective as of September 1, 2017 and the USCIS’ Adjudicator’s Field Manual has not been updated to be consistent with the new FAM guidance. Furthermore, the Board of Immigration Appeals has established that in the case of adjustment of status of immediate relatives, the adverse factor of “preconceived intent,” by itself, is outweighed by the equity of the immediate relative relationship itself. We do not know if USCIS will adapt this new DOS rule, Nonetheless, aliens who have entered the U.S. on a B or F visa, on the Visa Waiver Program or any other nonimmigrant visa that does not allow immigrant intent, should be cautioned regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry.

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