DOS adopts new “Ninety-Day Rule” for determinations of misrepresentation-based inadmissibility | CLINIC

DOS adopts new “Ninety-Day Rule” for determinations of misrepresentation-based inadmissibility

Susan Schreiber

Have you ever represented a client who entered with a tourist visa and then started working without authorization two weeks later? Or married a U.S. citizen within weeks of arrival and then wanted your help in preparing an application for adjustment of status? These are common fact patterns and they raise the same concern – that is, whether your client is inadmissible for a material misrepresentation under INA Sec. 212(a)(6)(C)(i) for entering with a tourist visa and then engaging in conduct that is inconsistent with the terms of his or her nonimmigrant status.

Under INA Sec. 212(a)(6)(C), a foreign national who willfully misrepresents a material fact in order to obtain a visa, other documentation, admission to the United States or any immigration benefit is inadmissible. While this ground of inadmissibility is waivable under INA Sec. 212(i), a waiver is only available to an individual who can show that his or her U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship if the visa is denied. An applicant for residency who does not have a qualifying relative would not be able to overcome this ground of inadmissibility.

The Department of State (DOS) has long had a “30/60 day rule” utilized by consular officers to evaluate when inconsistent conduct may trigger inadmissibility. Under this rule, a nonimmigrant who was in the U.S. and engaged in conduct inconsistent with his nonimmigrant status within 30 days of arrival was subject to a presumption that he misrepresented his intentions in applying for the nonimmigrant visa. Violations of status occurring more than 30 days but less than 60 days after entry did not give rise to a presumption of misrepresentation but could be the basis for a reasonable belief that the visa applicant misrepresented his or her intent. The same rule provided that where the inconsistent conduct took place after sixty days, no such presumption applied.

Effective September 2017, the DOS has replaced the 30/60 day rule with a new standard that is likely to subject more individuals to a presumption of misrepresentation. Under the new rule, an individual who engages in conduct inconsistent with his or her nonimmigrant visa within 90 days of entry is subject to a presumption that he or she made a willful material misrepresentation in applying for the nonimmigrant visa or at the time of admission. As listed in the revised Foreign Affairs Manual (FAM) text at 9 FAM 302.9-4(B)(3), examples of inconsistent conduct include:

  • working without authorization;
  • enrolling in school without being in a nonimmigrant status authorizing study;
  • marrying a U.S. citizen or lawful permanent resident while in B or F status and taking up residence in the U.S; 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.

What types of evidence will lead a consular officer to presume that an individual who violated his or her nonimmigrant status made a material misrepresentation to obtain the visa or to gain admission to the United States? Per the revised FAM text, “there must be evidence that, at the time of the visa application, admission into the United States, or in filing for an immigrant benefit (e.g. an application to change or extend a stay in nonimmigrant status), the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was inconsistent with the intended nonimmigrant classification”. The FAM goes on to say that this type of evidence would typically arise from an admission by the visa applicant, information from a prior nonimmigrant visa application; or a report by an immigration officer relating to a statement made by the visa applicant. Findings of inadmissibility based on inconsistent conduct within 90 days of admission require an advisory opinion, although the FAM notes that it may be informal. 

It’s important to note that a presumption of misrepresentation does not make a finding of inadmissibility inevitable. Where a presumption of inadmissibility is triggered, it may be overcome by evidence to rebut the presumption. Typically, rebuttal evidence will focus on circumstances that arose after your client entered the U.S. that led your client to alter his or her intentions. Perhaps your client came to the U.S. to visit friends and travel but then met his true love and decided to stay and get married. Or came to the U.S. to visit family but then worked without authorization when a family member became ill and needed support. As the FAM instructs, the visa applicant must be given an opportunity to rebut a presumption of material misrepresentation. But in the absence of additional proof to establish that there was no willful misrepresentation, the new guidance concludes that “a finding of ineligibility will most likely result.”

Violation of status or activities inconsistent with nonimmigrant status that occur more than 90 days after entry do not raise a presumption of willful misrepresentation although an officer may still consider such conduct where it gives rise to a “reasonable belief” that the individual misrepresented the purpose of travel at the time of visa application or application for admission. In cases involving inconsistent conduct after 90 days, the FAM directs the consular officer to seek an advisory opinion before making a determination of inadmissibility.

Finally, the new FAM guidance has no direct impact on admissibility determinations by USCIS, because it is directed at consular officers only. Parallel guidance for USCIS adjudicators is found in the USCIS Policy Manual at Volume 8, Part J, which addresses the assessment of inadmissibility under 212(a)(6)(C)(i) by USCIS adjudicators. Chapter 3 of the this section explicitly states that the “30/60 day rule is not a “rule” in the sense of binding  principle of decision”, but instead serves as “an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support a finding of fraud or misrepresentation.” It remains to be seen whether USCIS will modify the text of the USCIS Policy Manual to adopt the new FAM 90-day rule, either as binding guidance or as a replacement “analytical tool”.