Effective as of September 1, 2017, The Foreign Affairs Manual (“FAM”) now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” which states:

“If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”

In the event that a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit”, they are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

Section 212(a)(6)(C) of the Immigration and Nationality Act

Section 212(a)(6)(C) states that any alien who, by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the U.S. Accordingly, this new FAM guidance is extremely important for immigration attorneys and foreign nationals to understand.

It should be noted that USCIS’ Adjudicator’s Field Manual has not been updated to be consistent with the new FAM guidance.

Also, USCIS’ Policy Manual has not updated the 30/60 day rule, but this may happen in the near future.

What you need to know about the updated FAM subsection:

Inconsistent Conduct. For purposes of applying this new 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes:

• Engaging in unauthorized employment;
• Enrolling in a course of academic study, if such study is not authorized (e.g. B Visitor status);
• Marrying a U.S. citizen or LPR and taking up residence in the U.S., after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; 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.

Presumption of Willful Misrepresentation Based on Timing of Conduct.

The FAM indicates there will be a presumption of willful misrepresentation based on an alien’s activity within 90 days after entry to the U.S. In such a case, the burden of proof falls on the alien “to establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

Consular officers are directed to give an alien “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” On the other hand, if an alien violates or engages in conduct inconsistent with his or her non-immigrant status more than 90 days after entry into the U.S., there is no presumption of willful misrepresentation, though U.S. consular officers may still seek to revoke the visa if there is “reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission.”

Filing for Adjustment of Status.

The new language suggests that DOS is targeting aliens who enter through the Visa Waiver Program ( travel for tourism or business for stays of 90 days or less without a visa) or on a B-1/B-2 visitor visa and adjust to LPR status. Moreover, the Board of Immigration Appeals have established that in the case of adjustment of status of immediate relatives, the adverse factor of “preconceived intent,” by itself, is outweighed by the equity of the immediate relative relationship itself. See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981).

Furthermore, even if such filings occur after 90 days after entry, the alien may need to demonstrate that an event occurred, which caused them to change plans and desire to change U.S. immigration status.