On September 1st, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which 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 Act, is inadmissible”.
Specifically, 9 FAM 302.9-4(B)(3)(g) and (h) are substantially revised and the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visas or on a temporary basis.
For the purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:
· Engaging in unauthorized employment;
· Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification;
· A nonimmigrant in a status prohibiting immigrant intent marrying a United States citizen or lawful permanent resident and taking up residence in the United States;
· 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.
Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred within 30 days of entry. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a “reasonable belief” that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary.
In the contrary, Under the new 90-Day Rule, no presumption of willful misrepresentation arises if the individual violates status or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States. However, if the facts of the case give rise to a “reasonable belief” that the individual misrepresented the purpose of his or her travel at the time of the visa application or application for admission, rather than providing the opportunity to present evidence to the contrary, the Consular Officer must request an Advisory Opinion.
In addition to the DOS FAM guidance, the USCIS Policy Manual also states that adjudicators “should keep in mind that the 30/60 day rule is not a ‘rule’ in the sense of a binding principle of decision. The rule is simply an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support of finding of fraud or misrepresentation.” The Policy Manual also emphasizes, “[o]fficers must not use Foreign Affairs Manual (FAM) guidance in a denial.”
For More Detailed Information on NEW FAM Guidance, Please Click Here…
If you should have any questions or need more information about the way that the U.S. immigration and nationality laws may impact you, your family, your friends or your colleagues, please contact the U.S. immigration and nationality lawyers at the NPZ Law Group – VI