New Department of State 90-day Rule and What this means for you

The US Department of State (DOS) recently updated its law to provide US Consular officers additional guidance on what qualifies as “misrepresentation” by aliens who are seeking an immigration benefit such as an Adjustment of Status to Legal Permanent Resident (LPR) at the time they entered into the country.

The FAM or Field Adjudicators Manual was updated with a subsection – Inconsistent Conduct within 90 Days of Entry.   The section 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 other words, if within 90 days of entering the US, you do something that violates the non-immigrant intent of your visa, you could be found to have misrepresented your intentions in the US.  People who are found to have misrepresented their intentions may have their visa revoked or even become inadmissible and may be barred for life from entering the US.

The Five key Points to keep in mind with this update are:

1. Inconsistent Conduct: If within 90 days of entering on a visitor or other non-immigrant visa you:
   1. Work
   2. Enroll into a college – if not authorized
   3. Marrying a US Citizen or Green Card holder and taking up residence in the US; after entering on a non-immigrant Visitor or Student visa status or any other status that does not allow for an immigrant intent
   4. Engaging in an activity or anything else that may require you to change your status or adjust your status, before changing or adjusting your status
2. Presumption of Willful Misrepresentation Based on Timing of Conduct: If you are here on an non-immigrant visa and engage in inconsistent conduct (as indicated above) within 90 days after you arrive in the US, the officers are to assume that you willfully misrepresented your intentions at the time you entered the US.   You will need to prove and provide evidence to overcome this.  On the other hand, after 90 days, the officer cannot presume that willful misrepresentation, but can still seek to revoke your visa if there is a reasonable belief of misrepresentation on your purpose of travel
3. What happened to the 30/60 Day Rule? Is the FAM retroactive? The 30/60 day rule indicated that if you file for an adjustment within 30 days of entering the US, the government can presume that you had misrepresented your intent when you entered the US.  If you file after 30 days but before 60 days, there would be no presumption but if the facts show a reasonable belief that you may have misrepresented your intentions, you may still need to defend it.  If after 60 days, there was generally no basis for misrepresentation or inadmissibility finding.  While this has not been added to the USCIS Policy Manual, there is no indication that it will not be.  It is also not confirmed if this is retroactive, only that it becomes effective as of September 1, 2017.
4. Be Careful for Filing for the Adjustment of Status:   There is an indication that DOS is targeting people who have enter through the Visa Waiver Program or on a B1/2 visitor visa and adjust to LPR Status.  USCIS’s Adjudicator’s Field Manual, however, has not yet been updated to be consistent with DOS’ FAM guidance and the Board of Immigration Appeals or BIA have also established that those have entered into the US on a non-immigrant intent visa should be aware of the risks of filing for an extension, change or Adjustment of Status within 90 days of their entry.  Even after the 90 days you may still need show that something happened which caused you to change your plans and change your Immigration status.
5. Is Immigrant Visa/ Consular Processing a More Attractive Option? As mentioned above, USCIS has not yet declared that they will be adopting this new guidance from the Department of State, but it may still be better, with the additional interviews being conducted for I-485 applications, to file for your LPR status abroad via Consular Processing.