The Department of State (DOS) on September 1, 2017 amended the Foreign Affairs Manual (FAM) at 9 FAM 302.9-4 (B) (3) (g-h) with a new 90-day rule, replacing the prior 30/60 day rule.
THINGS TO WATCH OUT FOR UNDER THE NEW 90-DAY RULE
The new rule provides broader grounds for presuming willful misrepresentation when foreign nationals come into the United States on a non-immigrant visa and subsequently conduct themselves in a manner inconsistent with any oral or written representations made to Consular Officers at the time of Visa issuance or to CBP Officers at the port of entry.
If a foreign national enters the United States on a B-1/B-2 (Visitor’s Visa) and then applies for either a change of status to H-1B/L-1/F-1 or files Adjustment of Status to “Green Card” within 90 days, the government could review their prior oral or written representations at visa issuance stage (consulate) or at port of entry to evaluate whether they violated the intent of the visitor’s visa status.
FAM cites to the following instances of conduct that might result in a presumption of willful misrepresentation:
|Engaging in Unauthorized employment;
|Enrolling in a course of academic study, if such study is not authorized for that non- immigrant classification such as B1, B-2 status;
|A non-immigrant in B-1/B-2/F-1 status or any other status (that prohibits immigrant intent) marries a US Citizen or permanent citizen and takes up residence in United States; or
|Undertaking any other activity for which a change of status or an adjustment of status would be required.
GLF wishes to draw attention to certain situations under which there could be implications under the 90-day rule:
|People entering under the Visa Waiver program (which admits visitor’s for 90-day period), getting married to a US citizen, and applying for adjustment of status within the 90-day period
|Foreign nationals already married to a U.S. citizen who visit their spouse using a B-2 visa; and during the B-2 visa visit, the couple may decide to file a marriage based green card application
|If a person enters on B-1/B-2 status and then applies for admission to a school and files for a change of non-immigrant status to F-1
REBUTTING A PRESUMPTION OF WILLFUL MISREPRESENTATION
It is important to note that even when there is a finding of wilful misrepresentation; due process requires that the applicant be allowed an opportunity to present evidence rebutting the presumption. Accordingly, the government has to produce actual evidence of oral or written misrepresentation for the presumption to hold and the applicant must be given an opportunity to rebut the presumption before being found ineligible for adjustment under INA 212(a)(6)(C)(i) – permanent ground for inadmissibility.
Also, USCIS has not updated its Policy Manual on the 90-day rule yet. GLF will certainly be watching the implementation of the new Rule and will keep you the client updated via our Newsletter.
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