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90 days. the new normal.

A recent revision was made to the Foreign Affairs Manual (FAM) which significantly changes how immigration defines “misrepresentation” in determining if a person is inadmissible to the U.S. under INA §212(a)(6). More specifically, the new rule, enacted under the citation, 9 FAM 302.9-4(B)(3)(g) and (h) has effectively eliminated the “30/60 Day Rule” and replaced it with the 90 day rule.   

Under the old 30/60 day rule, when a foreign national filed for adjustment or change of status within 30 days of entry into the U.S., the government would presume that the foreign national willfully misrepresented his/her intent on entry.  If the foreign national filed for adjustment or change of status between 30 and 60 days, there would be no presumption of misrepresentation but the immigration service would use a “reasonable belief” standard to determine if there was intent upon entry and thus determine if the foreign national made a “misrepresentation” that would render them inadmissible to the U.S. and ineligible for adjustment of status. If the foreign national applied after 60 days, it would not constitute a basis for a finding of misrepresentation.

The new rule replaces the 30/60 rule with a presumption of willful misrepresentation when the foreign national files for adjustment or change of status within 90 days of entry on a non-immigrant visa that does not contain a provision for dual intent. This means that a foreign national who wishes to adjust his status must maintain nonimmigrant intent for a full 90 days while in most cases, having no work authorization, while they remain in the United States.

One of the most important takeaways from this new rule is that if a change of status or adjustment of status is undertaken within 90 days of entry on a non-immigrant visa (or visa waiver) immigration will make a presumption of misrepresentation but also, an application made after 90 days of entry on a non-immigrant visa (or visa waiver) will result in a determination as to whether there is a “reasonable belief” that there was a misrepresentation.  The latter was the old standard used for the period between day 30 and 60 after entry.  This is a dramatic change in that the immigration service may use the “reasonable belief” standard indefinitely after a person’s entry into the United States.

As of now, these changes only exist in the Foreign Affairs Manual which governs the Department of State, which is the agency that grants visas to foreign nationals who wish to enter the U.S.  The USCIS Policy Manual has not been amended as of yet, but we do expect the change to be made to the USCIS Policy Manual imminently.

Although the updated rule might have been intended to punish those who fraudulently misrepresent their intentions when seeking admission to the U.S., it seems that the rule will have a harsh effect on lower income individuals. It is difficult for even the wealthiest to maintain a residence abroad while physically remaining in the United States unable to work for a full 3 months yet, FAM now requires just that. Any individual seeking to change or adjust their status should speak with an experienced attorney concerning his/her specific circumstances.

Any person who is found to be inadmissible under the statute of misrepresentation at INA 212(a)(6), will be ineligible for adjustment of status unless a waiver is granted.  A waiver is a very burdensome process which requires a finding of hardship to a U.S. Citizen spouse or parent, which means that there are people who will not qualify for a wavier and will find themselves ineligible to obtain permanent residence regardless of an otherwise approved, or approvable, petition.

At this point, we will wait and see how this new language is applied, but considerable caution is being advised until precedent cases are established, or more guidance is published.

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