The 90 Day Rule – Changing Immigration Status within 90 days of Entry

In a previous article, we provided examples of actions that Department of State’s Foreign Affair Manual (“FAM”) indicated as “inconsistent conduct” as it pertains to the “90 day” rule.

Visiting individuals changing their status within 90 days of entry

One of the examples provided by the FAM was changing status within 90 days of entry. We advised that to avoid the presumption of willful misrepresentation that could result in inadmissibility, individuals interested in changing their immigration status should do so after 90 days have passed since their entry. We further advised that if you do file within 90 days of your entry, you will be given an opportunity to rebut the allegation of misrepresentation if you can provide evidence to rebut it. Thus, it is possible to overcome the presumption of misrepresentation and avoid a finding of inadmissibility even if you file within 90 days of your entry.

Important Tips:

1. The FAM guidance insists that “there must be evidence that, at the time of the visa application, admission into the United States or in a filing for an immigration benefit (e.g., an application to change or extend stay in nonimmigrant status), the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was inconsistent with intended nonimmigrant visa classification.” If the government is unable to establish that there is evidence of an admission to a consular or immigration officer that was made orally or in writing, then that would be grounds to argue that there was no misrepresentation.
2. The FAM guidance also explicitly instructs the consular officer that “[y]ou must give the alien the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” Thus, if the applicant can demonstrate that it was not her intention to apply for adjustment of status at the time of her admission to the United States, but she changed her mind after her entry, that could be a basis to rebut the presumption.
3. A misrepresentation must be both willful and material.

Material: Misrepresentation is material when it tends to shut off a line of inquiry that is relevant to the alien’s inadmissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa or other benefit. If the applicant can establish that the misrepresentation was not material, then that too would be a defense against a misrepresentation finding.

Willful: An innocent misrepresentation is not considered willful. Thus, it should not result in a finding of inadmissibility.

It is always prudent to be cautious and avoid risks that would result in a finding of inadmissibility. However, if you have filed for a change of status within 90 days of your entry, it is crucial that you consult with an immigration attorney to determine how to avoid inadmissibility if there was a change in your intention after the fact or if no oral or written misrepresentation was made to a governmental official.

If you have any questions about the “90 day” rule or any other immigration matter, contact our attorneys at the Law Offices of Azita M. Mojarad, P.C. Our experienced immigration attorneys can advise you on what actions to take to ensure proper submission and processing of your immigration applications.