October 20, 2017

The U.S. State Department recently updated the Foreign Affairs Manual’s subsection, titled “Inconsistent Conduct within 90 Days of Entry” which appears to discard the prior “30/60-day rule”, with respect to the adjustment or change of status after entry on a nonimmigrant visa. 

Prior rule held that if a person filed for an adjustment within 30 days of entry, the government could presume that the person misrepresented his or her intention in seeking a visa or entry into the U.S. If the act occurred between 31 and 60 days after entry, there were no presumption of misrepresentation. However, if there is a reasonable belief of misrepresentation, the applicant must present countervailing evidence. If the act occurred more than 60 days after admission into the U.S., generally there was no basis for a misrepresentation or inadmissibility.

The new language states:

“If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry…, 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.”

The section explains that if 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,” then they are directed to, “bring the derogatory information to the attention of the Department for potential revocation.”

Immigration practitioners should note the extreme consequences of the updated guidelines. The Immigration and Nationality Act states that anyone 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 United States.