Recently, the Trump administration changed a policy that places aliens under advanced scrutiny.
If an alien takes any actions within 90 days of entering the country that are not compliant with his/her visa status, it will likely be presumed that they willfully made a misrepresentation about their motives for entering the country.
This new rule is called the 90-day rule and it replaces the 30/60-day rule. It marks a small yet significant change in immigration policy.
The change became official on September 1, 2017, when the Department of State updated the Foreign Affairs Manual (FAM). It is important to note the rule is not a statute, nor is it an official regulation; it is better seen as an advisory principle created to help consular officers if a subsequent violation of visa status qualifies as a “ willful misrepresentation” in the initial visa application.
The new rule is found in 9 FAM 302.9-4. To better understand the significance of this rule and the recent change, let’s take this rule section-by-section.
9 FAM 302.9: Discusses some of the many reasons aliens can be inadmissible for various reasons
So the FAM is a mega-big handbook Department of State officials use to, among other things, make immigration decisions. Chapter 9 of the FAM deals with visas. Section 302 outlines all the myriad ways an alien can become ineligible for a visa. Section 302.9 outlines the reasons aliens can be ineligible for entry under INA 212(a)(6).
The INA is the Immigration and Nationality Act. It is codified in §1182 of the United States Code, which is basically an ultra-mega-big book containing all the laws of the U.S. INA 212(a)(6)(C) says:
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.
In layman’s terms, this means anyone who has lied — or willfully misrepresented — about something important — a material fact — in a visa application may not receive a visa.
To mere people like ourselves, it may seem like common sense is all that is needed to determine whether something is a “misrepresentation.” However, when money and people’s lives are on the line, “common sense” doesn’t cut it. That’s why the State Department wrote a whole section on how to determine whether an action is a “misrepresentation.” That section is 9 FAM 302.9–4.
9 FAM 302.9-4(B)(1): Provides four criteria for finding a misrepresentation
9 FAM 302.9-4 discusses reasons for an alien’s inadmissibility due to a misrepresentation. 9 FAM 302.9-4(B)(1) outlines four criteria required for finding misrepresentation. For an alien to be inadmissible because of a misrepresentation it must be determined that:
- There has been a misrepresentation made by the applicant;
- The misrepresentation was willfully made;
- The fact misrepresented is material; and
- The alien by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.
In plain English, the misrepresentation must be made by the person applying for the visa, it must have been done willfully, it must have been about something important, and it must have been for purpose of obtaining a visa or other benefit.
Let’s see what each of these criteria entail.
(B)(3): Defining misrepresentation
Section (B)(3) defines “misrepresentation.” First, it provides a basic definition: a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.
Let’s look at this more closely.
a misrepresentation is an assertion or manifestation not in accordance with the facts. This provides for a broader definition than a lie — a lie being a false statement made with the intention to deceive — this encompasses a statement that was purposefully made, that is untrue, but was not made with the intent to deceive. As is discussed below, a misrepresentation must be made willfully, which means its lower limit is set somewhere above a mere mistake. Additionally, (B)(2) defines the upper limits of misrepresentation: it is something less than fraud. Fraud must be shown by evidence of the intent to deceive and an officer must actually believe the lie.
Misrepresentation requires an affirmative act taken by the alien.This statement differentiates between a statement and a silence. Here, silence, or failure to volunteer information, does not by itself amount to a misrepresentation.
A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.This statement suggests a few additional points. The misrepresentation must be made by the alien — or the aliens agent or attorney so long as the alien was aware of the action. The misrepresentation must be made before a U.S. Official, which means it could be made orally or in written form most likely before a consular officer or a Department of Homeland Security officer. The misrepresentation must be made on the alien’s own application, not in regards to someone else’s application.
It should be noted that a “timely retraction” could remedy the misrepresentation. Timeliness depends on the circumstances of the particular case; a retraction should be made at the first opportunity to be safe.
(B)(3)(g): States that activities that are inconsistent with an alien’s visa status are a red flag.
(B)(3)(g) dives into a tricky topic, one that is at the center of the 90-day rule: activities inconsistent with visa status. It states: In 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. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants and been admitted to the United States, either: Apply for adjustment of status to lawful permanent resident; or fail to maintain their nonimmigrant status (for example, by engaging in unauthorized study or employment).
This passage states that immigration officers are sometimes faced with the difficult task of interpreting an alien’s inconsistent behavior. Oftentimes this occurs when an immigrant applies for lawful permanent residence or fails to maintain her nonimmigrant status.
Since it’s difficult for immigration officers to know what to do in this case, the Administration created the 90-day rule.
(B)(3)(g)(2) & (3): Shows when the 90-day rule should be used
The 90-day rule is mostly about a legal concept called presumption. A presumption is an idea that is taken to be true, and often used as the basis for other ideas, although it is not known for certain. It’s similar to an assumption but not quite as strong. It is most easily exemplified in the phrase “innocent until proven guilty.” In murder trials in the U.S., a suspect is presumed innocent until proven guilty. That means it is the prosecution’s job to prove the defendant is guilty, not the defendant’s job to prove that she is innocent.
It is the same case here: an alien that behaves inconsistently with the representations made in her visa application is presumed to have made the representations not willfully — unless those inconsistent actions are made within 90 days of her entry into the U.S. This is because if inconsistent action is taken so quickly after arriving in the U.S. it is arguably likely the alien lied about her intentions for coming in the first place.
Previously, under the 30/60 day rule, if an alien made inconsistent actions within 30 days of entry, the misrepresentations made in her application were presumed to be willful. Now, under the 90-day rule, that time period has been extended from 30 days to 90 days. As the names imply, that is the primary substantial change made to the rule.
The new rule states:However, if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry . . . you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.
The rule also requires the immigration officer to request an advisory opinion on the case.
So, if inconsistent conduct is made, the presumption shifts against the alien, and the alien now has the responsibility to prove she did not make the misrepresentations willfully.
The section continues to list some specific conduct that would be inconsistent or in violation of an alien’s nonimmigrant status:
- Engaging in unauthorized employment;
- Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
- 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
- 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.
So, becoming employed, enrolling in school, marrying a citizen, or doing other activities that require an adjustment of status could put an alien at risk of coming under the 90-day rule.
If inconsistent conduct only occurs after 90 days have passed, then the presumption does not shift against the alien.
(B)(4) & (5): Defines “willfully” and “material fact”
For an alien to be inadmissible under INA §212(a)(6), which the 90-day rule applies, she must make a misrepresentation willfully. Willful is a definable legal concept and the FAM states:
In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement.
In other words, the alien must knowingly make the untrue statement, which is notably different from making an untrue statement with intention to deceive.
The misrepresentation must also be material. Materiality, like willfulness, is another legal concept. In this case a misrepresentation is material if:
- The alien would have been inadmissible if the true facts were revealed, or
- The misrepresentation cut off a line of questioning that would have lead to the determination that the alien was inadmissible.
So, in other words, most topics an applicant might have an interest in hiding are material.
For aliens submitting visa applications: Do not lie about your motives for application. For visiting aliens interested in changing your status: Do so very carefully, probably only after 90 days have passed since your entry.