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DOS Expands Misrepresentation Rule to 90 Days

On September 1, 2017, the Department of State (DOS) revised its Foreign Affairs Manual (FAM) guidance to consular officers on the term "misrepresentation" and how determinations of inadmissibility should be made. Under INA §212(a)(6), "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."

Changes to the FAM include a section regarding "Inconsistent Conduct Within 90 Days of Entry." Under the FAM revisions, such inconsistent conduct would include, but not be limited to:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g., B status);
  • A nonimmigrant in B or F status, or any other status that prohibits immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such change or adjustment.

9 FAM 302.9-4(B)(3)

Under the new 90-day rule, willful misrepresentation will be presumed of a person who engages in the conduct above or otherwise violates his or her nonimmigrant status within 90 days of entry. Consular officers are directed to give an alien "the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it."  

If an alien 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."

These changes can have significant consequences for individuals who apply for adjustment of status or a change of status after entering the U.S. on a nonimmigrant visa or temporary basis.  

Although the FAM is only directly applicable to the State Department and USCIS has not yet updated their Policy Manual to reflect the new changes, it is possible that they will do so in the near future.

The FAM makes no mention of retroactive application of this new guidance. However, individuals who relied on the old 30/60 day rule and have pending adjustment of status applications should consult an experienced immigration attorney to plan their cases effectively. 

Should you need additional information or have any questions, please contact our office. 

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