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What Visitors Visa holders and other NonImmigrants should know about misrepresentation and the new “90 DAY” rule

On September 16, 2017, the U.S. Department of State released a Cable amending the rules on the application of the presumption of “misrepresentation” for visa holders who are changing or adjusting status in the United States. It covers all other activities inconsistent with the purpose of the visa issued to the non-citizen. With this rule, most likely to be affected among others are those who are present on visitors visa in the United States and are planning to file for their adjustment of status based on marriage to a U.S. citizen or any other approved petition.

Sarah applied for a visitors visa at the U.S. Embassy in Manila. Her mother, who is a U.S. citizen, suffered a stroke and is in a very serious condition. When she appeared for her interview, she was asked about the purpose of her visit. Sarah said that she wants to visit her mother who got sick. She showed her strong ties to the Philippines and convinced the consular officer of her good faith intention to visit an ailing parent. She was issued the visitors visa and entered the United States after a few days from issuance.

During her visit to the United States, Sarah took care of her mother until she recovered. After less than one month of stay, Sarah was re-introduced to her former high school classmate Mark who was a U.S. citizen. Both fell in love again and hastily married. After 2 months, Sarah filed for her adjustment of status to that of an immigrant. Under the new rules of the DOS, will Sarah be granted an adjustment of status?

30/60 Day Rule Changed to 90 Days Rule

The former 30/60 day rule is used by the consular officers and adjudication officers of the USCIS in determining whether a ground of inadmissibility known as “misrepresentation” exists in applicants for visas. Under the law, a person who misrepresented himself/herself before an immigration or consular officer is inadmissible and may be denied a future visa.

The old law looks into activities of the visa applicant that occurred within 30-60 days of presence in the United States. These includes engaging in unauthorized employment or marrying a US citizen and taking up residence in the United States after marriage. 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 unless 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.

The new 90 Days rule changed the period of time for applying the presumption of misrepresentation. It replaced the 30/60 day rule with a 90 Days Rule which provides that a nonimmigrant who violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry in the United States by: 1) engaging in unauthorized employment; 2) enrolling in a course of unauthorized academic study; 3)marrying a U.S. citizen or a lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent or 4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation.

Misrepresentation as a ground for inadmissibility is a serious matter. It will be a basis to deny future applications for visas, change or adjustment of status. More importantly it also will be a ground to refuse one’s entry in the United States on an expedited removal more commonly called “airport to airport”. It is best for those who plan to engage in activities that are not consistent with their visas to seek professional legal counsel before acting on their plans. Those who are passionately engaged to marry must be cautious of this new rule before executing their grand plan to marry and adjust status.

(Atty. Lourdes Santos Tancinco, Esq. is the immigrant advocate and a principal partner at the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through her website www.tancinco.com)

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