New Department of State 90-day Rule Regarding Misrepresentation Based on Conduct in U.S.: Is Adjustment of Status or Change of Status Now a Death Trap?

[databit 328]

On September 1, 2017, the U.S. Department of State (“DOS”) updated 9 FAM 302.9-4(B)(3) to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. “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.”

There are potentially devastating consequences to this new guidance.  Section 212(a)(6)(C) of the Immigration and Nationality Act states that any alien who, by 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 immigration benefit is inadmissible and may be barred for life from entering the U.S.  Accordingly, this new FAM guidance is extremely important for immigration attorneys and foreign nationals to understand.

Here are five things to know about this updated FAM guidance:

1. Inconsistent Conduct. For purposes of applying this new 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes:

• Engaging in unauthorized employment;
• Enrolling in a course of academic study, if such study is not authorized (e.g. B Visitor status);
• Marrying a U.S. citizen or LPR and taking up residence in the U.S., after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
• 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.

 

 

 

 

 

 

https://wolfsdorf.com/blog/5-things-know-new-department-state-90-day-rule-regarding-misrepresentation-based-conduct-u-s-adjustment-status-change-status-now-death-trap/

[sparkles_ 456]

Following 

[kzielu 1,149]

Wow. Finally. It'll be interesting to see if it has any result going forward.

[Jordan8768 107]

I would always be weary of sources that come directly from a law office especially when there's no other reliable sources online related to this subject. Not even the uscis website provides any insight into policy changes

[databit 328]

All those "We suddenly decided to get married while I was visiting" people will need to think twice.

[databit 328]

Just now, Jordan8768 said:

I would always be weary of sources that come directly from a law office especially when there's no other reliable sources online related to this subject. Not even the uscis website provides any insight into policy changes

The link to the government site was on the first line of the article

[geowrian 22,337]

Important piece to point out:

"It should be noted that USCIS’ Adjudicator’s Field Manual has not been updated to be consistent with the new FAM guidance.  Moreover, the Board of Immigration Appeals have established that in the case of adjustment of status of immediate relatives, the adverse factor of “preconceived intent,” by itself, is outweighed by the equity of the immediate relative relationship itself.  See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) and Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981). "

 

So there is no real change here. USCIS still doesn't have a 30/60/90 day rule and intent is still determined at POE for people who AOS as an IR. This change only affects those going through consular processing. This is a DOS change, not USCIS (DHS).

 

The article suggests that USCIS may adopt this change in the near future, but that's pure speculation to me. Court rulings would still override any policy manual changes.

Edited September 14, 2017 by geowrian

[NigeriaorBust 4,087]

  Looks like the loophole is closing. Glad to see them going to a one process for all.

[oncoming traffic 21]

20 hours ago, databit said:

All those "We suddenly decided to get married while I was visiting" people will need to think twice.

i mean literally all that would change is a spike in marriages and subsequent applications sent on day 91 lol

[Sarasota 178]

There should be no pathway to apply for AOS from a Tourist Visa/VWP. No queue jumping

 

 

[geowrian 22,337]

Certainly not everyone adjusting from a tourist visa or VWP is doing so to skip the line...things do happen (medical conditions, political & military issues, etc.). I think the issue is that intent is determined at POE, which makes an easy hole for abuse without even a way to see how much it's happening...instead of allowing somebody to use common sense to determine if they were actually trying to bypass the visa process.

[Sarasota 178]

47 minutes ago, geowrian said:

Certainly not everyone adjusting from a tourist visa or VWP is doing so to skip the line...things do happen (medical conditions, political & military issues, etc.). I think the issue is that intent is determined at POE, which makes an easy hole for abuse without even a way to see how much it's happening...instead of allowing somebody to use common sense to determine if they were actually trying to bypass the visa process.

Personally I think it's pretty black and white. A tourist visa is for tourism, it should not be a pathway to acquire LPR status. There are proper pathways to sponsor a spouse or fiance(e) into the US.

 

Perhaps the application for tourist visas should include something along the lines of 'I acknowledge any application I make to adjust status will be denied'.

[Nitas_man 3,100]

Just an opinion that the majority of the B-AOS (within 90 days of entry) fully intended to and did skip the line.  Happy to see that loophole closing.

[Dianalorena 1,153]

 

We have to endure up to a year or more following the proper immigration process, facing background checks and interviews because a lot of people commit fraud. So the ''good guys'' pay for the mistakes of the ''bad guys'' to oversimplify. 

I understand not everyone that gets married on a tourist VISA has immigrant intent. Now they face additional scrutiny because people continue to abuse this loophole. They're not being denied access to the US, they will just have to do it the proper way like the rest of us. No one wants to be away from their loved ones, but unfortunately this is how the system currently works. 

 

[geowrian 22,337]

On 9/19/2017 at 3:23 PM, hjriach said:

Personally I think it's pretty black and white. A tourist visa is for tourism, it should not be a pathway to acquire LPR status. There are proper pathways to sponsor a spouse or fiance(e) into the US.

 

Perhaps the application for tourist visas should include something along the lines of 'I acknowledge any application I make to adjust status will be denied'.

Things look a lot more gray from here. I've read plenty of cases where returning home after entry on a B2 or ESTA was purely an unnecessary hardship or potentially quite harmful. Being separated is awful. The solution isn't to make it more awful by having even more unnecessary separation. The issue is the potential fraud, so a means to find that fraud should available.

 

That wording on the DS-160 (or ESTA application) is fine...if they ever make such a change.