On Sept. 1, 2017 the State Department implemented a new 90-Day Misrepresentation Rule. It says a “presumption of willful misrepresentation” will apply to a person who violates his/her nonimmigrant (temporary) status or engages in conduct inconsistent with that status within 90 days of entry. The rule change only applies to visa applications abroad, but the government could easily change the rules for applications inside the US also.

Misrepresentation issues arise under the Immigration and Nationality Act, Section 212(a)(6)(C)(i) which says: “

Any alien who, by fraud or 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 benefit provided under this Act, is inadmissible.

“Inadmissible” means you will not be allowed to legally enter the U.S. If the government determines you willfully misrepresented a material fact (that’s a whole separate subject). You can apply for a ‘waiver of inadmissiblity’ in limited circumstances; it’s time-consuming, risky and expensive.

The rule change is in the Foreign Affairs Manual (FAM) that guides Department of State officers at consulates. This does not apply to officers of the U.S. Citizenship and Immigration Services (USCIS) who decide applications in the US. But it’s quite possible a similar change will be made by USCIS in its Policy Manual which would affect applications to ‘adjust status” – to change from e.g. a B-2 visitor visa to an immigrant visa (green card) due to marrying a U.S. citizen, or to “change status” e.g. from a B-2 visitor to an F-1 student visa.

Here’s an example under the prior “30/60-Day Rule.” Say a couple met online, has been emailing, talking, and met in person once or twice in or out of the US. He’s a U.S. citizen (USC) and she’s French. They decide she will visit the US to test out the relationship a little longer. She’s eligible to enter the U.S. through the Visa Waiver Program which allows visa-free visits for most nationals of 38 countries for up to 90 days. Things are going well and they don’t want to part again; they marry after she’s in the US for 75 days and she stays beyond 90 days. Then they prepare and file for a green card for her.

Under the previous 30/60-Day Rule, the government presumed she misrepresented her intentions if the violation or conduct occurred within 30 days of entry. If the violation or conduct took place 31-60 days after entry, no presumption of misrepresentation would apply. After 60 days the offending conduct alone was not considered a basis for a finding of inadmissibility. In these circumstances she wasn’t necessarily out of trouble after 60 days. But if USCIS had a “reasonable belief” that the individual misrepresented her intent, she would be allowed to provide evidence to the contrary. It happens – you plan to return to your country but then things are just going too well and you don’t want to be apart again.

Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his/her nonimmigrant status or “engages in conduct inconsistent with that status” within 90 days of entry. If a State Department officer becomes aware of ‘derogatory information’ concerning a person with a valid visa in the US, who may have misrepresented his/her intentions:

  • at the time of visa application,
  • to DHS at the port of entry,
  • or in a filing for an immigration benefit,

the officer can inform the Department of the information and DOS can revoke the visa.

What if the violation or conduct occurs more than 90 days after entry into the US? Under the new rule there’s no presumption of misrepresentation. But if the facts give rise to a “reasonable belief” that the individual misrepresented the purpose of his/her travel at the time of the visa application or application for admission, the foreign national will not be allowed to present evidence to the contrary. Instead the Consular Officer must request an Advisory Opinion from the State Department’s Visa Office in Washington, D.C. That’s an uncertain process and can cause quite a delay in the application.

Though the wording is slightly different, both the old and new FAM guidance describe actions that are sufficient to trigger the rule:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study without authorization and/or the appropriate change of status;
  • A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States.
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.

Going back to the US/French couple above, under the new rule they have a problem. She can’t stay beyond 90 days under the Visa Waiver Program, and if they marry within 90 days, she’ll be presumed to have misrepresented her intentions.

We frequently meet with clients who violated their status or engaged in “inconsistent conduct” within 90 days. In the future that’s likely to be much more problematic. The bottom line is not to violate the terms of your visa if you want to remain in the US, and to preserve your chances of future immigration approvals, whether in the US or abroad.