Effective August 1, 2017, the Department of State (DOS) revised its Foreign Affairs Manual (FAM) guidance on how consular officers should make determinations of inadmissibility under INA 212(a)(6)(C). This section of the law provides in general that:
“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.”
The “90-Day” Rule
The revised provision includes detailed guidance for consular officers on interpreting and applying the “misrepresentation” ground of inadmissibility.
A key element of this policy is the “90-day” rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” This means that if the foreign national engages in any “inconsistent conduct” within 90 days of his or her entry, a consular officer “may presume” that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US.
The current FAM provision is an expansion of what previously had been the “30/60 day” rule. The prior 30/60 day rule worked in a similar way, on the same basis as the 90-day rule.
The new 90-day rule that replaces the 30/60 rule is clearly harsher as the presumption that the person misrepresented his or her intentions is for a 90 day period as opposed to a 30 day period. Still, the key issue is what the intention of the person was at the time of issuance of the visa or at the time of admission into the United States. If they were inconsistent at those points in time under the applicable visa, then it does not make a difference whether there is a 30 day or a 90 day rule.
Keep in mind, even if there were allegedly inconsistent conduct within the 90 days, the applicant must be given an opportunity to rebut the presumption of willful misrepresentation. This can be effectively done by presenting evidence to overcome this presumption.
For individuals submitting visa applications to come to the U.S.: Do not lie in your visa application about your motives for coming to the U.S.
For visiting individuals in the U.S. interested in changing your status: Do so very carefully, and if possible, only after 90 days have passed since your entry.
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.