On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance to consular officers regarding the interpretation of “misrepresentation” for purposes of determining whether a foreign national has, by fraud or willfully, misrepresented a material fact to procure a visa or admission into the United States.

The revision to the guidance specifically eliminates the former 30/60 Day Rule from the FAM, which provides a consular officer may presume the applicant misrepresented his activity in seeking a visa or entry if the inconsistent conduct (defined below) occurred within 30 days of entry. If the inconsistent conduct occurred more than 30 days but within 60 days of entry into the U.S., no presumption of misrepresentation arises; however, if facts in the case give the consular officer reasonable belief of the foreign national’s misrepresentation, then an opportunity must be given to present countervailing evidence. After 60 days of entry, the DOS does not consider the conduct alone to constitute a basis for inadmissibility into the U.S.

The guidance in the FAM now prolongs the time period for presumption of a foreign national’s conduct inconsistent with his or her nonimmigrant status to 90 days of entry into the U.S. A consular officer may presume that a foreign national’s inconsistent conduct was a willful misrepresentation if the conduct occurred within the 90 days. The rule therefore has transformed into the 90-Day Rule.

For purposes of the 90-Day Rule, conduct that violates or is inconsistent with the foreign national’s nonimmigrant status includes, but is not limited to:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is unauthorized for that nonimmigrant classification (e.g. B status);
  • A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marries a U.S. citizen or lawful permanent resident and takes up residence in the U.S.;
  • Undertaking any other activity for which a change of status or adjustment of status would be required without changing or adjusting status.

The foreign national will have the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it. The burden of proof of the foreign national’s true intent falls on the foreign national if the inconsistent conduct occurs within 90 days of entry.  After the 90 days of entry have passed, no presumption of willful misrepresentation arises (unless the consular officer has a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of the visa application or application for admission).

Even though the changes to the FAM are not reflected in the United Stated Citizenship and Immigration Services (USCIS) Policy Manual, it is possible that USCIS may take similar guidance in the future. Foreign nationals should proceed with caution if adjusting status, extending status or changing status within 90 days of entry on a B or F visa, any other nonimmigrant visa, or the Visa Waiver Program. A drastic determination of a willful misrepresentation of a material fact to procure a visa, admission into the U.S. or other immigration benefit may deem a foreign national inadmissible or may bar a foreign national from entry into the United States for life.

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