New 90-Day Rule Regarding Misrepresentation

What Is the 90-Day Rule?

The U.S. Department of State (“DOS”) updated the Field Adjudicators Manual (“FAM”) on September 1, 2017 to provide guidance to U.S. consular officers in regards to the term “misrepresentation” and foreign nationals in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”

The FAM now includes a subsection titled “Inconsistent Conduct Within 90 Days of Entry.”9 FAM 302.9-4(B)(3) . The updated section states that: “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.”

Individuals who have been found to have willfully misrepresented” a material fact, 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.” 9 FAM 302.9-4(B)(3) .

So Why Is This Important for Me?

It’s important to understand if your conduct is inconsistent with your nonimmigrant status. Working without authorization, enrolling in school when you are not allowed to, and marrying a U.S. citizen or legal permanent residence after entering in on a status with nonimmigrant intent are examples of activities inconsistent with nonimmigrant intent.

The new FAM rule indicates that there will be a presumption of willful misrepresentation based on the alien’s activity within 90 days after entry to the U.S. Any activity more than 90 days after entry into the U.S. is not considered willful misrepresentation.

The 90-day rule replaces the previous 30/60 day rule which indicates that any adjustment application filed within 30 days of entry is considered misrepresentation. Any act filed after 30 days but before 60 days generally is not considered misrepresentation, unless evidence indicates otherwise. Finally any action after 60 days, there is no presumption of misrepresentation.

With this new rule, adjustment of status applications should be careful if he or she has entered in on nonimmigrant intent visa. USCIS has not yet adopted this rule, however, there is still a risk of a finding of willful misrepresentation. If you have entered in on the Visa Waiver Program or a nonimmigrant intent visa, and are considering actions inconsistent with your status, you should immediately consult one of the immigration lawyers in our office. To schedule a consultation, please call.