New Department of State 90-Day Rule And Misrepresentation

The United States Department of State recently updated its Field Adjudicator’s Manual(“Manual”) with new guidelines relating to misrepresentation in relation to immigrants present in the United States who engage in activities inconsistent with the representations made to immigration officers about their intentions at the time of their visa application or to the Department of Homeland Security when applying for an immigration benefit. 

The Manual states that if an immigrant violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States, the consular officer may presume that the immigrant’s representations about only engaging in activities compliant with his or her status were willful misrepresentations of his or her intention in seeking a visa or entry to the United States. If the officer becomes aware of this information, he or she must bring the information to the attention of the Department for potential revocation. Put simply, if an immigrant applies for a visa or entry into the United States and within 90 days engages in activities that violate the visa or entry requirements, an immigration officer can presume willful misrepresentation based on the immigrant’s activities, and the immigrant risks having the visa or entry revoked.

This is especially problematic because willfully misrepresenting a material fact in order to get an immigration benefit makes an immigrant inadmissible.

Under the new guidance, the following are examples of activities that are inconsistent with a nonimmigrant’s status:

a. Working without authorization
b. Enrolling in school if such academic study is not allowed for that nonimmigrant status (i.e. someone who comes to the U.S. with a B visa who then enrolls in a college program)
c. A nonimmigrant who enters the U.S. with a B or F visa and then marries a U.S. citizen or a lawful permanent resident (LPR) and remains living in the U.S.; or
d. Undertaking any other activity for which a change or adjustment of status would be required, without the benefit of such a change or adjustment

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, there is no presumption of willful misrepresentation. If a willful misrepresentation is suspected, the burden of proof is on the immigrant to establish that his or her true intent at the time of the presumed willful misrepresentation was allowed in his or her nonimmigrant status.

If you have any questions about misrepresentation or need to talk to a lawyer to discuss your immigration options, please don’t hesitate to contact us.

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