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90-Day Rule

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

What is the 90-Day Rule?

On September 1, 2017, the U.S. Department of State updated its rule regarding the methodology for determining whether a person's conduct, inconsistent with the terms of his or her visa, in the United States indicates that commission of willful misrepresentation when that person originally applied for visa.

Under the rule, nonimmigrants who conduct themselves inconsistently with the terms of their visa, within 90 days of entry into the United States, are “presumed” to have willfully misrepresented the true purpose of their visit when they applied for a visa at the U.S. consulate.  9 FAM § 302.9-4(B)(3)(g))(2)(a).

Warning. Violations of the terms of visa, regardless of when they occur, may always result in adverse action, including removal (deportation). In addition, under the appropriate circumstances, such violations may result in a finding of willful misrepresentation or fraud.

What is the impact of willful misrepresentation or fraud?

Under the United States immigration laws, any willful misrepresentation or fraud to secure immigration benefits operates as a lifetime bar from the United States. The Immigration and Nationality Act (INA) § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), specifically 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 chapter is inadmissible.”

The bar is for life. In contrast to some other bars against admissibility, for which a waiver may be available under some circumstances, there are no waivers from a bar arising from willful misrepresentation or fraud. If you are accused of willful misrepresentation or fraud, or found to have committed such acts, you should contact an attorney to determine whether any remedies are available to you.

Be mindful that sometimes you may engage in inconsistent conduct and nothing may happen to you while you are inside the United States. Afterwards, when you leave the country and try to get another visa to come back, the issue may be raised during the consular processing.  At that time you will be out of the United States and with limited recourse to legal remedies.

What type of conduct may constitute willful misrepresentation or fraud?

There are a variety of ways in which a person may commit willful misrepresentation or fraud. Among them are the statements one makes to the consular or border officers (at the port of entry) to secure a visa or gain entry into the United States.

What is an inconsistent activity for the purpose of the 90-Day Rule?

Nonimmigrants to the United States are granted a visa and are allowed entry on the basis of the representation they have made to support their visa application.  For example, you may represent that you wish to study at a particular university, in which case the U.S. consulate may issue you a student (F-1) visa to attend that university.  Or, you may represent that you are coming here as a tourist, in which case the U.S. consulate may issue you a tourist (B-2) visa.

In short, the type of visa you receive is based on the representation you made regarding the purpose of your visit to the United States. And, while you are in the United States, you are required to conduct yourself according to the terms of that visa. An obvious example of inconsistent conduct is when a person comes to the United States on a student visa, but does not attend school at all. Or when a person comes on a tourist visa, but starts working in the United States. To be found of willful misrepresentation, a person's inconsistent conduct may be less severe than those described in these examples.

The United States Department of State's Foreign Affair Manual specifically lists a number of instances of inconsistent conduct:

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

9 FAM § 302.9-4(B)(3)(g))(2)(b).

What is the effect of presumption of willful misrepresentation?

If the inconsistent conduct happens within the first 90 days, the nonimmigrant is automatically presumed to have committed willful misrepresentation.  In that case, the nonimmigrant will have the burden to proof “to establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.” The consular officers are advised to give the nonimmigrants the opportunity to present evidence and rebut the presumption, prior to a decision.

On the other hand, if the conduct occurs after the 90 days, there would be no presumption of willful misrepresentation, even though the consular office may still find that the nonimmigrant willfully misrepresented his or her purpose, 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.”

What is the 30/60 Day Rule?

Under the 30/60 Rule, if the inconsistent conduct occurs within 30 days of entry, the nonimmigrant is presumed to have committed willful misrepresentation.  If it occurs after the 30th day and on or before 60th day after entry, no presumption arises but the nonimmigrant may be called upon to show that no willful misrepresentation occurred. If the inconsistent conduct occurs more than 60 days after entry, generally there would be no finding of willful misrepresentation.

Prior to September 1, 2017, both the USCIS and the Department of State used the 30/60 Day Rule. The USCIS continues to use the 30/60 rule in determining whether a nonimmigrant has committed willful misrepresentation.

The USCIS rule differs from the new 90-Day Rule applied by consular officer.  The USCIS Policy Manual, Vol. 8, Ch. 3, § (A)(3) specifically states:  The “DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.”

Again, be mindful that sometimes the USCIS, applying its 30/60 Day Rule, may give you a pass on an inconsistent conduct, but when you leave the country and try to get another visa to come back, the consular officer, applying the 90-Day Rule, may find you inadmissible.

What if you have a genuine change of purpose or encounter unexpected circumstances while in the United States?

Life is full of unexpected circumstances. It may so happen that you lose your overseas source of support while you are here and need employment authorization. Or, that you were lovestruck and decide to get married. If circumstances change and you need to engage in an activity inconsistent with the terms of your visa or status, promptly seek legal counsel.  You may be able to apply to the USCIS for a change of status or other relief.  Regardless, do not engage in conduct inconsistent with the terms of your visa, before receiving permission or an approved change of status.

In addition, start assembling extensive evidence showing that you did not commit misrepresentation when you applied for a visa and when you entered the country and that the unexpected change of circumstances is genuine and was either beyond your control or was not by advance design.

 

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