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Working or Marrying on Tourist or Visitor Visa | The 30/60 Rule Regarding Fraud

| Nov 2, 2016 | Common Immigration Questions and Problems, Visa Issues

When the subject of the “30/60 day rule” is discussed, it is often brought up in the context of marriage based cases in which a foreign national marries or files for adjustment of status within 30 to 90 days after entering the US. The issue is whether the alien harbored a pre-conceived intent to marry prior to entering the country (normally on a B1/B2 visitor’s visa). If the individual marries and files for permanent residency within 30 days of entry, most USCIS officers will follow this notorious Department of State rule and presume misrepresentation; if the marriage and/or adjustment occurs within 60 days of entry, officers will afford the alien to present evidence that he/she did not misrepresent his/her intentions at entry.

Interestingly, however, the 30/60 rule is not limited to marriage based cases. The rule actually casts a wider net than most people realize, encompassing conduct by aliens 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 immigration officers when applying for admission.” Although this is commonly seen in marriage cases, the rule actually lists other situations as well. 9 Foreign Affairs Manual 40.63, N4.7-1. explicitly lists the following as examples:

· Actively seeking unauthorized employment and, subsequently, becomes engaged in such employment;

· Enrolling in a program of academic study without the benefit of the appropriate change of status; and

· Undertaking any other activity for which a change of status or adjustment of status would be required, without the benefit of such a change or adjustment.

As a consequence, actions such as taking up employment or enrolling in school soon after entry on a visitor’s visa can be especially problematic, regardless of the actual circumstances or reasons why. The ramifications are far reaching because if a consular officer or USCIS officer alleges or worse, presumes fraud or misrepresentation, the individual is potentially stuck with a ground of inadmissibility under INA 212(a)(6)(C) that is indefinite. In other words, the bar does not expire after a certain number of years, such as the ten-year unlawful presence bar, which loses its bite after ten years have elapsed. Unless and until the fraud/misrepresentation bar is waived (through a 212i waiver on Form I-601), the foreign national will continue to be deemed inadmissible no matter how many years have passed since the conduct.

Given the consequences, it is crucial that prior conduct as well as present conduct be taken into consideration when evaluating the viability of an individual’s case. For more information on the 30/60 rule and the potential impact it may have on your adjustment of status or consular processing case, please contact our office to arrange for a confidential consultation. Please remember that the foregoing is general information only. It is not a substitute for legal advice nor is it intended to create an attorney-client relationship.

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