On September 1, 2017, the U.S. Department of State (“DOS”) issued new guidance to consular officers interpreting the term “misrepresentation” under the Immigration and Nationality Act. As used in this context, “misrepresentation” by an applicant for a visa or admission to the U.S. would prevent the applicant from receiving a visa or would lead to the individual’s inability to enter the U.S. for a period of time, potentially permanently. The law provides that if an individual, by fraud or willful misrepresentation of a material fact, seeks to procure or has procured a visa or admission to the U.S., that individual is inadmissible.

Previously, DOS followed a rule commonly known as the 30/60 day rule. That rule provided that if an individual entered the U.S. on a nonimmigrant visa and within 30 days violated the provisions of the visa status or engaged in conduct inconsistent with the terms of the visa status, there was a presumption the individual engaged in willful misrepresentation at the time of applying for the visa or entering the U.S. If that conduct occurred more than 30 days but less than 60 days after entering the U.S., there was no presumption of misrepresentation, but the consular officer could determine there were facts which rose to a reasonable belief that the individual engaged in misrepresentation. The individual would be permitted to provide evidence to the contrary. If the conduct which is inconsistent with the terms of the visa status occurred more than 60 days after entry, there would be no finding of misrepresentation.

DOS has instituted a new rule to replace the 30/60 day rule. It is now known as the 90 day rule. This new guidance provides that if an individual enters the U.S. and engages in conduct contrary to the terms of the visa status or violates the visa status within 90 days of entering the U.S., there is a presumption of willful misrepresentation. A finding of willful misrepresentation at any time will prevent the individual from receiving another visa and potentially from entering the U.S.

Common activities that consular officers consider to trigger the application of the 90 day rule are:

  1. Enter as a tourist and subsequently enroll in a full course of academic study without first changing status;
  2. Engage in unauthorized employment;
  3. The marriage to a U.S. citizen or permanent resident by a person present in the U.S. whose visa status does not allow them to intend to remain permanently (most commonly B-1/B-2, F-1, or on visa waiver) and who then takes up residence in the U.S.; and
  4. Any other activity for which a change of status or adjustment of status would be required without first obtaining that change or adjustment of status.

The prior 30/60 day rule was more forgiving for individuals who entered the U.S. and subsequently engaged in activities contrary to the visa status, whether willfully or as a result of changed circumstances. The new 90 day rule will make it much more difficult for individuals to adjust their plans after entering the U.S. Any activities which could potentially be contrary to the terms of the approved visa status should be reviewed carefully with an immigration attorney to determine whether the potential change would affect the individual’s ability to remain in the U.S. or return to the U.S. in the future. If you have any questions about what activities might jeopardize your status, please contact our office.