The 90-day rule, preconceived intent and willful misrepresentations
The intentions and representations of visa applicants and visa holders are surprisingly important. The reason for this is because every visa is issued with the idea that the holder will only use it for the specific permitted purpose. For example, a student visa holder is allowed to enter the United States to study but not to work (except if and when permitted by the law). As such, a non-immigrant visa holder cannot have the “preconceived intent” to immigrate to the U.S. (as this would not be permitted under the visa), and cannot “misrepresent” his or her intentions to consular or immigration officers. This means that the non-immigrant must enter the U.S. with the genuine intention to leave after a certain period of time. Therefore, for purposes of this post, “preconceived intent” can be defined as the intent of a non-immigrant to, indeed, immigrate to the U.S. On the other hand, a “misrepresentation” can be defined as “an assertion or manifestation not in accordance with the facts” (basically, a false representation). In the real world, preconceived intent comes into play when a foreign national applies for a non-immigrant visa but really intends to stay in the United States permanently or indefinitely. For example, it’s the case of a foreign national who applies for a student visa (thus “promising” to return to his or her home country after finishing school), but instead has the “preconceived intent” to immigrate, and once in the U.S. marries a citizen and applies for a Green Card. When applying for certain immigration benefits, a finding of preconceived intent, misrepresentation or fraud may be an adverse factor or the basis for a denial, and may trigger serious consequences including inadmissibility or deportability.
The old 30/60-day rule
For many years, consular and immigration officers used the 30/60-day rule to interpret and adjudicate certain issues in the context of fraud, misrepresentations and preconceived intent. The rule was not contained in the Immigration and Nationality Act or in any statutes. Rather, it existed in 9 FAM 302.9 of the FAM (Foreign Affairs Manual), and is still cited in the USCIS (United States Citizenship and Immigration Services) Policy Manual, a manual containing USCIS’ immigration policies. In practice, the rule was used by consular and immigration officers with respect to foreign nationals who, after obtaining or entering the U.S. on a non-immigrant visa, either applied for permanent residence or violated the terms of their visa. Examples of violations of non-immigrant status were: engaging in unauthorized study or employment, marrying and taking up permanent residence, undertaking activities for which a change or an adjustment of status would be required without first obtaining such change or adjustment, and so on.
Under the old 30/60-day rule:
- A violation occurring within the first 30 days of admission in the U.S. created a presumption that the foreign national misrepresented his or her intentions at the time of visa application or at the time of entry (by failing to disclose that he or she had no real intention to remain in non-immigrant status), and that the true intention was to change or adjust status shortly after entering the U.S. Therefore, the foreign national had to rebut the presumption and prove his or her intention to remain in non-immigrant status;
- A violation occurring between the 30th and the 60th day after admission did not create a presumption of misrepresentation. However, if the circumstances gave the consular or immigration officer reason to believe that the foreign national had preconceived intent and/or lied, then the officer had to give the foreign national the opportunity to present countervailing evidence; and
- If a violation occurred more than 60 days after admission, then such violation alone did not constitute a misrepresentation (however, it could have still been the basis for another immigration violation).
The new 90-day rule
On September 1, 2017, the Department of State (DOS) made abrupt changes to the FAM, replacing the former 30/60-day rule with the new 90-day rule. Similar to the old 30/60-day rule, the new 90-day rule is not a “rule” in and of itself in the sense that it does not exist in statutes or regulations. Rather, it exists in the Foreign Affairs Manual (FAM). Also, just like the old rule, it’s an adjudicative tool to be used in cases involving non-immigrants conducting themselves in a manner inconsistent with the representations made to consular officers. For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with non-immigrant status now 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 non-immigrant classification (e.g. B status);
- A non-immigrant 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.
The new section of the FAM states that a violation of non-immigrant status within 90 days of entry in the U.S. creates a presumption that the foreign national’s representations to comply with non-immigrant status were willful misrepresentations. The term “willful” means knowingly and intentionally. In practice, this means that it will be presumed that the foreign national deliberately lied to the consular officer.
Just like the old rule, the key point in the new rule is the true intent of the foreign national at the time of application for the visa or at the time of entry in the U.S. However, the new rule creates a stricter standard for those non-immigrants who violate (or exhibit conduct inconsistent with) their status, providing broader and harsher grounds to find that a foreign national had preconceived intent or misrepresented his or her intentions. First and foremost, the new rule extends the presumption of willful misrepresentation to a 90-day period, as opposed to the old 30-day period. Furthermore, according to the language of the new rule, a violation of non-immigrant status within the 90-day period creates a presumption of “willful misrepresentation,” as opposed to the old language in the sense of a “misrepresentation.”
In practical terms, the new 90-day rule gives consular and immigration officers broader grounds to deny admission to the U.S., to revoke visas, or to make a finding of inadmissibility based on fraud or misrepresentation, which can render a foreign national eligible for deportation, can prevent re-entry in the United States, and can bar from eligibility for permanent residence.
Notably, the section of the USCIS Policy Manual citing the Department of State’s 30/60-day rule has not been modified yet, and as of today’s date the Policy Manual still mentions the old rule. However, it is possible that the Policy Manual will soon be updated with the new rule or that USCIS officers will still be instructed to refer to the new 90-day rule.
Is it completely safe to change or adjust status after 90 days?
Not always. Changes or adjustments of status occurring 90 days after entry may still be problematic. The new rule states that conduct inconsistent with (or in violation of) non-immigrant status occurring more than 90 days after entry does not raise a presumption of willful misrepresentation. However, if the consular or immigration officer has reason to believe that the foreign national had preconceived intent and/or misrepresented his or her intentions, then the officer must request an Advisory Opinion. This means that the officer has to ask to a higher department to decide whether or not the foreign national misrepresented his or her intentions or had preconceived intent. Furthermore, immigration and consular officers can take into account all evidence of wrongdoings and violations they deem relevant, not only the conduct and representations at issue. Therefore, even in case of a change or adjustment of status occurring 90 days after entry, the applicant should be ready to demonstrate a genuine non-immigrant intent at the time of the visa application or at the time of entry.
What happens to the applications to change or adjust status filed before September 1, 2017? Is the 90-day rule retroactive?
Initially, this was not clear. However, on September 16, 2017 the DOS issued a cable field stating that the new 90-day rule “replaces the old 30/60-day rule” and “applies to all adjudications that occur after September 1, 2017.” The cable field also states that “the guidance should not be applied retroactively.”
Preconceived intent and immediate relatives of United States citizens
Under U.S. immigration law, “immediate relatives” are spouses of U.S. citizens, children (under 21 years of age and unmarried) of U.S. citizens, and parents of U.S. citizens 21 years of age or older. Based on legal precedent in cases decided by the Board of Immigration Appeals (Matter of Cavazos – decided in 1980, Matter of Ibrahim – decided in 1981, and Matter of Battista – decided in 1987), in cases involving the immediate relative of a U.S. citizen, preconceived intent cannot be the basis for a denial if it is the only adverse factor. In practical terms, this means that, for example, if a non-immigrant marries a U.S. citizen and applies for a Green Card within 90 days of entry, the sole fact that he or she applied for the Green Card within the 90 days cannot be the only reason to deny the Green Card. Notably, this just means that preconceived intent cannot be the only reason for a denial. However, the consular or immigration officer may still deny the application if there is evidence of other wrongdoing (for example, if the applicant’s past visa history suggests that he or she abused the visa process).
Preconceived intent and dual intent visas
“Dual intent visas” allow foreign nationals to be temporarily present in the United States with the known intention of possibly immigrating. Examples of dual intent visas are K-1, H-1B, O-1 or L-1 visas. In practice, this means that dual intent visa holders enter the U.S. as non-immigrants, but retain the option to apply for permanent residence in the future. The way preconceived intent and the 90-day rule apply to dual intent visas is different from other non-immigrant visas, but this analysis is outside of the scope of this post.
In conclusion, the 90-day rule is not a “rule” that exists in statutes or regulations. Rather, it is an analytical tool that may be used, along with other evidence, in cases where the actions of certain non-immigrant visa holders may be in violation of non-immigrant status. The 90-day rule now provides broader and harsher grounds than the old 30/60-day rule to find that a non-immigrant had preconceived intent and/or willfully misrepresented his or her intentions. As explained above, a finding of preconceived intent, misrepresentation or fraud can trigger very serious consequences. Therefore, applying for immigrant status (or changing status in general) can be serious business, and the intentions, the representations and the overall conduct of a foreign national are now subject to an even stricter scrutiny by consular and immigration officers. For these reasons, each situation is unique, and only a competent attorney will be able to evaluate the facts and provide sound counsel to the non-immigrant.