Rule Change Could Increase Risk of Fraud Charges
September 28, 2017
On September 1, 2017, the Department of State (DOS), which regulates the issuance of visas at all United States Embassies around the world, issued a rule change to the Foreign Affairs Manual (FAM) that could increase the number of individual’s accused of committing misrepresentation in the immigration context. This is significant as an allegation of misrepresentation would render an individual ineligible for a visa and/or admission to the United States.
The rule that was changed by the DOS was commonly known as the “30/60 Day Rule”. It has now been changed to a “90-Day Rule”.
Under the new “90-Day Rule”, an individual will be presumed to have committed misrepresentation, and therefore inadmissible to the US, if any of the following occurs within 90 days of entry to the US: (1) engages in unauthorized employment; (2) enrolls in a course of study without a proper visa; (3) marries a US citizen or permanent resident and takes up residence in the US, if the individual is a tourist, student, or other temporary visa holder that does not allow immigrant intent; or (4) undertakes any other activity that would require a change or adjustment of status prior to being granted the change or adjustment of status.
Under the previous “30/60 Day Rule”, the presumption of misrepresentation applied only if the prohibited conduct occurred within 30 days of entry to the US. If it occurred after 30 days but before 60 days of entry, there was no presumption of misrepresentation. If there was a “reasonable belief” that the individual misrepresented his intent, however, then he would be required to present evidence that he did not intend to engage in conduct inconsistent with the temporary visa.
Moreover, under the “30/60 Day Rule”, if such conduct occurred after 60 days of entry to the US, the conduct alone would not be sufficient for an individual to be found to have committed misrepresentation. Under the new “90-Day Rule”, even if the conduct occurs after 90 days of entry, an individual can still be deemed to have committed misrepresentation if there is a “reasonable belief” that the individual falsely stated the purpose of travel at the time of applying for a visa or when entering the US.
Although the “90-Day Rule” specifically applies to the processing of visas by US Embassies overseas, individuals applying for adjustment of status before the US Citizenship and Immigration Service (USCIS) should also be concerned. The USCIS has been using the “30/60 Day Rule” as an analytical tool in assessing whether an individual has committed misrepresentation. As such, the USCIS will likely be influenced by the new “90-Day Rule” in their review of applications, and may likely release their own parallel guidance to its officers at some point.
Accordingly, individuals must understand the risks of undertaking any conduct within 90 days of entry to the US that is in violation of their temporary nonimmigrant visa. Additionally, even after 90 days, individuals must continue to ensure that they are prepared to discuss their legitimate and valid reasons for why they applied for their temporary nonimmigrant visa and their purpose when entering the US. Otherwise, an individual could find themselves faced with a charge of misrepresentation and therefore ineligible to enter the US in the future and/or having their application for a nonimmigrant visa or green card denied. Given the seriousness of a misrepresentation allegation, it is vital that individuals have proper legal counsel intricately familiar with these changes to provide thorough and knowledgeable advice.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter. Aquino & Loew also handles family law and criminal matters. Providing Personalized Service Nationwide & Abroad Since 1996.