5 Things to Know About the New Department of State 90-day Rule Regarding Misrepresentation Based on Conduct in U.S.: Is Adjustment of Status or Change of Status Now a Death Trap?

By:  Joseph Barnett, Bernard Wolfsdorf, Avi Friedman, and Cliff Rosenthal

On September 1, 2017, the U.S. Department of State (“DOS”) updated 9 FAM 302.9-4(B)(3) to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. “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 Field Adjudicators Manual (“FAM”) now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” which states:

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.

In the event that 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 are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

There are potentially devastating consequences to this new guidance.  Section 212(a)(6)(C) of 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.  Accordingly, this new FAM guidance is extremely important for immigration attorneys and foreign nationals to understand.

Here are five things to know about this updated FAM guidance:

  1. Inconsistent Conduct. 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 (e.g. B Visitor status);
  • Marrying a U.S. citizen or 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
  • 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.
  1. Presumption of Willful Misrepresentation Based on Timing of Conduct. The FAM indicates there will be a presumption of willful misrepresentation based on an alien’s activity within 90 days after entry to the U.S.  In such a case, the burden of proof falls on the alien “to 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 are directed to give an alien “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.”  On the other hand, if an alien violates or engages in conduct inconsistent with his or her non-immigrant status more than 90 days after entry into the U.S., there is no presumption of willful misrepresentation, though U.S. consular officers may still seek to revoke the visa if there is “reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission.”
  1. What Happened to the 30/60 Day Rule? Is the FAM Retroactive? The updated FAM appears to have discarded the prior “30/60 day rule” with regards to adjustment of status after entry on a nonimmigrant visa.  The 30/60 day rule can be summarized as follows:
  • 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. A finding of misrepresentation or fraud can result in a drastic lifetime bar to entering the U.S.
  • 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.

USCIS’ Policy Manual has not been updated the 30/60 day rule, but this may happen in the near future.  The FAM makes no mention of retroactive application of this new guidance, but also indicates that it is effective as of September 1, 2017.  Aliens who relied on the old 30/60 day rule and have pending adjustment of status applications should speak with experienced immigration counsel to strategize their cases effectively.

  1. Be Careful Filing for Adjustment of Status. The new language suggests that DOS is targeting aliens who enter 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 on a B-1/B-2 visitor visa and adjust to LPR status.  It should be noted that USCIS’ Adjudicator’s Field Manual has not been updated to be consistent with the new FAM guidance.  Moreover, the Board of Immigration Appeals have 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.  See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981).  Nonetheless, aliens who have entered the U.S. on a B or F visa, or any other nonimmigrant visa that does not allow immigrant intent, or the VWP should be cautioned regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry.  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.
  1. Is Immigrant Visa/Consular Processing a More Attractive Option?   Even though we do not know if USCIS will adapt this new DOS rule, it is becoming more and more attractive to obtain LPR status through consular processing abroad than to file for adjustment of status in many cases, especially with the anticipated delays likely to result from USCIS expanding in-person interviews for adjustment of status applications.  Depending on the circumstances of the case, it may be advisable to withdraw an 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.

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