DOS 90-Day Rule for Presumption of Misrepresentation

Presumption of willful misrepresentation

 

Introduction

On September 1, 2017, the U.S. Department of State (DOS) made important updates to its Foreign Affairs Manual (FAM) at 9 FAM 302.9. Specifically, the DOS replaced its former “30/60 day rule” with a “90 day rule.”

Under the previous rule, the DOS's position was that certain actions within 30 days of entry that are inconsistent with one's nonimmigrant status would carry with it a presumption that the alien made a material misrepresentation in applying for his or her visa, thus triggering inadmissibility under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). Inconsistent conduct outside of the 30 day window but within 60 days would not trigger an automatic presumption, but would subject the case to higher scrutiny. Under DOS guidance, inconsistent conduct outside of 60 days would not form a basis for an inadmissibility determination for willful misrepresentation under the old DOS rules.

Under the new 90 day rule, the DOS will consider certain inconsistent conduct within 90 days of entry to carry with it a presumption of willful misrepresentation in procuring a nonimmigrant visa. Conduct outside of the 90 day window will not be considered, in the eyes of DOS, to form the basis of an inadmissibility determination for willful misrepresentation of a material fact.

Both the old 30/60 day rule and the new 90 day rule most often arise in cases involving nonimmigrant visitors. It is important to note that, like the 30/60 day rule, the 90 day rule is only binding on DOS officers and not on officers of the Department of Homeland Security (DHS). The DHS, and namely the United States Citizenship and Immigration Services (USCIS), was not restricted from making section 212(a)(6)(C)(i) inadmissibility determinations based on conduct occurring outside of the purview of the 30/60 day rule. However, as we discussed in a detailed article, the USCIS took the 30/60 day rule under advisement, and the Administrative Appeals Office (AAO) has applied it often in unpublished decisions.

In this article, we will explain the new 90 day rule by referring to both the FAM and a DOS Cable on the issue. To learn about how the USCIS applied the old 30/60 day rule, which provides clues as to how it may take the new 90 day rule under advisement, please see our updated article on that subject [see article]. To learn about the old 30/60 day rule itself, please see our archived article [see article].

Resources and Materials

The new 90 day rule is found at 9 FAM 302.9-4(B)(3)(g)(2) and (3). For your convenience, we have uploaded the entirety of 9 FAM 302.9 as of its September 26, 2017 update [PDF version].

Additionally, we will also discuss an unclassified DOS cable on the subject that was released on September 16, 2017 (17 STATE 95090 (Sep. 16, 2017)) [PDF version].

Purpose of the 90 Day Rule

The purpose of the 90 day rule is to trigger, under specified circumstances, the presumption that an alien is inadmissible under section 212(a)(6)(C)(i) because of the alien's “misrepresentation of a material fact” to obtain a benefit or visa under the INA.

The question of whether an alien misrepresented his or her intentions in applying for a visa through consular processing is distinguishable from whether the alien violated his or her status or otherwise acted in a manner that was inconsistent with his or her representations when applying for a visa or other immigration benefit. Section 212(a)(6)(C)(i) requires that the alien have willfully misrepresented his or her intentions when he or she applied for the visa or benefit. Therefore, it is possible that an alien (1) acts inconsistently with his or her stated intentions in applying for a visa or immigration benefit but (2) establishes that he or she did not misrepresent his or her intentions at the time he or she applied for the visa or other benefit. The distinction is important because section 212(a)(6)(C)(i) attaches for life, and there is only a limited waiver of the inadmissibility ground available in the form of section 212(i).

At 9 FAM 302.9-4(B)(3)(g)(1)(a), the FAM advises consular officers that, “[i]n determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.” The DOS states that the issue arises most often in cases where the nonimmigrant:

i. Applies for adjustment of status; or
ii. Fails to maintain nonimmigrant status (e.g., by engaging in unauthorized study or employment).

At 9 FAM 302.9-4(B)(3)(g)(1)(c), the FAM makes clear that the failure to maintain nonimmigrant status on account of post-entry actions that were inconsistent with representations made when applying for a visa, admission, or an immigration benefit does not, in and of itself, prove that the alien misrepresented his or her intentions at the time of entry. The FAM instructs DOS officers to “consider carefully the precise circumstances of the change of activities when determining whether the applicant made a knowing and willful misrepresentation.” In general, a DOS officer must have “direct or circumstantial evidence sufficient to meet the 'reason to believe' standard” in order to find that an alien misrepresented his or her intentions at the time of entry. The “reason to believe standard” is more exacting than “mere suspicion” but less so than the preponderance, or weight, of the evidence standard.

As we explained in the introduction, neither the old 30/60 day rule nor the new 90 day rule are binding on the USCIS. However, the USCIS takes the rule under advisement, and it has been referred to in a multitude of unpublished AAO decisions. We encourage you to read our article on AAO decisions applying the 30/60 day rule for examples of cases where the AAO found that aliens misrepresented their intentions in applying for a visa or benefit on account of inconsistent actions taken within 30 days of entry, and cases where aliens successfully rebutted the presumption of misrepresentation for such inconsistent conduct within 30 days of entry [see article].

Overview of the 90 Day Rule

9 FAM 302.9-4(B)(3)(g)(2) outlines the new 90 day rule.

Under the new rule, if an alien “violates [his or her nonimmigrant status] or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry,” a DOS officer may presume that the alien willfully misrepresented his or her intentions “about engaging in only status-compliant activity” when seeking a visa or entry. The DOS offered a non-exhaustive list of the types of conduct occurring within 90 days that may trigger this presumption (quoted):

i. Engaging in unauthorized employment;
ii. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g., B status);
iii. 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
iv. Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such change or adjustment.

Under 302.9-4(B)(3)(h)(1), the consular officer examining the case must find evidence that the alien stated in applying for a visa, admission, or another immigration benefit that the purpose of his or her seeking the benefit was consistent with the intended nonimmigrant classification in order to make a determination that the alien is inadmissible under section 212(a)(6)(C)(i). Without such evidence, it could not be determined that the alien misrepresented his or her intentions in applying for a visa, admission, or other benefit under the INA.

Under 9 FAM 302.9-4(b)(3)(h)(2), where an alien acted inconsistently with his or her nonimmigrant status within 90 days of entry, he or she has the burden of “establish[ing] that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.” In short, this means that the alien would have the burden of proving that, although he or she acted in a manner inconsistent with his or her status within 90 days of entry, he or she did not misrepresent her intentions in seeking a visa, admission, or other benefit. The FAM makes clear that the alien must be given “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” If the alien fails to rebut the presumption of willful misrepresentation based on his or her inconsistent activity within 90 days of entry, he or she will likely be found to be inadmissible under section 212(a)(6)(C)(i). However, if the alien successfully rebuts the presumption, the DOS will not determine that he or she is inadmissible and instead process the case to its conclusion.

Inconsistent Conduct Outside of 90 Days of Entry

Under 9 FAM 302.9-4(B)(3)(g)(3), there is no presumption of willful misrepresentation for conduct inconsistent with nonimmigrant status more than 90 days after entry into the United States. However, the FAM notes that the fact there is no presumption of misrepresentation does not mean, depending on the facts of the case, that a consular officer could not determine that an alien is inadmissible under section 212(a)(6)(C)(i). A consular officer is instructed to seek an Advisory Opinion from DOS if he or she has a “reasonable belief” based on the facts of the case that the alien misrepresented his or her purpose for travel at the time of the visa application or application for admission. We discuss general rules for cases arising outside of the 90 day window earlier in the article [see section].

Application for USCIS

The 90 day rule, like the 30/60 day rule before it, is only binding guidance for officers of the DOS. Accordingly, the USCIS is not limited by the 90 day rule. It may take the 90 day rule under advisement, but nothing precludes the USCIS from finding that section 212(a)(6)(C)(i) applies based on evidence arising from conduct well outside of the 90 day window. Please see our full article on the USCIS's March 28, 2018 update to its Policy Manual for a discussion of these points [see article].

Because the 90 day rule is new, it is unclear how the USCIS will consider it in forthcoming cases. However, for guidance, we can look to how the USCIS utilized the prior 30/60 day rule. In numerous unpublished AAO decisions, the AAO stated that it found the analysis in the 30/60 day rule persuasive and often cited to it in cases where an individual acted in a manner inconsistent with his or her status within 30 days of entry. It seems probable that the USCIS will consider the new 90 day rule in a manner similar to how it considered the 30/60 day rule. However, the issue will be worth watching as the 90 day rule takes effect.

At 302.9-4(B)(3)(g)(1)(b), the FAM advises consular officers that they may make the Department of Homeland Security (DHS) aware of derogatory information regarding an alien who may have misrepresented his or her intentions at the time of a visa application, application for admission, or filing for an immigration benefit. This would most likely occur regarding aliens who are applying for adjustment of status or change of status. The DHS may consider this information in adjudicating an application or considering other immigration charges against an alien. However, a DOS recommendation is not binding on the DHS.

90 Day Rule Not Retroactive

At 17 STATE 95090, the DOS made clear that the new 90 day is not retroactive. It only applies to adjudications that occur after September 1, 2017.

Conclusion

The DOS's 90 day rule represents a more aggressive posture for the agency regarding section 212(a)(6)(C)(i) inadmissibility than did the 30/60 day rule. Where under the 30/60 day rule the presumption of misrepresentation was triggered only by conduct within 30 days that was inconsistent with their representations in seeking a visa, entry, or other benefit that applied for conduct, under the 90-day rule, the same presumption is triggered by such conduct if it occurs within but not after 90 days.

The surest way to not be subject to the 90 day rule is to carefully follow the rules associated with a given nonimmigrant status. In applying for a visa, admission, or other benefit, an alien should always be forthright about his or her intentions in order that any issues may be resolved without a subsequent status violation. If an alien is subject to scrutiny under section 212(a)(6)(C)(i), he or she should consult with an experienced immigration attorney immediately for guidance.

Although the rule applies to all nonimmigrant classifications, it most commonly comes up in cases involving nonimmigrant visitors. Please see our website categories for articles on permissible activities in B1 [see category] and B2 [see category] status.