Last year the Department of State announced that it was replacing its  “30/60-day rule” with a “90-day rule” as the standard applied by consular officers in evaluating inadmissibility for fraud pursuant to INA § 212(a)(6)(C)(i). The 90-day rule subjects a nonimmigrant to a presumption of having made a willful material misrepresentation at the time of admission or application for a nonimmigrant visa when that nonimmigrant enters the United States and within 90 days engages in conduct inconsistent with his or her nonimmigrant status. The Foreign Affairs Manual at 9 FAM 302.9-4(B)(3) enumerates the following examples of inconsistent conduct:

• working without authorization
• enrolling in school when academic study is not authorized by one’s nonimmigrant status
• marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States when one is in B or F status
• undertaking any other activity for which a change of status or adjustment of status would be required, without the benefit of such a change or adjustment.

When someone engages in conduct that triggers the presumption of material misrepresentation, it is that person’s burden to rebut the presumption.

USCIS updated Chapter 3 of Volume 8, Part J of the Policy Manual on May 15, 2018, which discusses adjudicating inadmissibility based on a misrepresentation. Specifically, the manual acknowledges that the State Department’s 90-day rule is an analytic tool for consular officers, not a binding principle or decision. Furthermore, the manual clarifies that the rule is not binding on USCIS. Those adjudicators “should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.”

Despite this language, practitioners should be prepared for USCIS officers to ask questions about potential misrepresentation when a client has engaged in conduct inconsistent with nonimmigrant status within 90 days of entry. Such conduct could include entering as a tourist and then working without authorization or marrying a U.S. citizen and applying for adjustment of status. Clients should be prepared to show that they did not misrepresent their intentions when they entered or applied for a nonimmigrant visa. For example, they should be prepared to explain why the decision to work or marry arose only after they entered the country based on new circumstances.