Question: I entered a couple of months ago to the U.S. I want to get married and file my adjustment application. Do you see any problems with that?
Answer: Yes, it will be a problem. On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which provides: 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.
Specifically, it has been substantially revised, the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.
Question: What Activities Will Trigger the Application of the 90-Day Rule and How Has This Changed from the 30/60-Day Rule?
Answer: Though the wording is slightly different, the following actions that are sufficient to trigger the application of the rule: • Engaging in unauthorized employment; • Enrolling in a full 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.
Question: At What Point Does the 90-Day Rule Create a Presumption of Misrepresentation and How Has This Changed from the 30/60 Day Rule?
Answer: Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred within 30 days of entry. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a “reasonable belief” that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary.
Question: What if the Conduct Occurs More Than 90 Days After Entry into the U.S.?
Answer: Under the new 90-Day Rule, no presumption of willful misrepresentation arises if the individual violates status or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States. However, if the facts of the case give rise to a “reasonable belief” that the individual misrepresented the purpose of his or her travel at the time of the visa application or application for admission, rather than providing the opportunity to present evidence to the contrary, the Consular Officer must request an Advisory Opinion.
This, it now is easier for officers to make the fraud charge and harder for clients to get around it. Thus, be sure before you do anything inconsistent with the B2 Visitor Visa status that you seek the advice of an immigration attorney.