In a recent article, the New York Times covered a major change to the Department of State policy regarding visa revocation and charges of misrepresentation. According to the report, Secretary of State Rex W. Tillerson has directed American embassies around the world to apply a stricter standard to visa applicants who violate or exhibit inconsistent conduct with their status within three months of entry into the United States. The cable essentially instructs consular officers to take steps to potentially revoke such visas and/or make a finding of inadmissibility based on fraud or misrepresentation-something which, in practical terms, prevent a foreign national from re-entering the United States or applying for a green card.
The article is consistent with a significant revision of the Foreign Affairs Manual, which as of September 1, 2017, has been amended to do away with the "30/60 Day Rule." See our previous article for more background on the 30/60 Rule. Under the old Department of State guidance, consular officers were instructed to evaluate inconsistent conduct within the context of whether it occurred within 30 days or after 60 days:
· If an alien violated his/her status within 30 days of entry, officers were allowed to presume misrepresentation
· If an alien violated his/her status within 30 days but less than 60 days, no presumption arises, but officers may still closely scrutinize the issue
· If an alien violates status more than 60 days after admission, "the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)(C)(i) inadmissibility" (fraud/misrepresentation ground).
Under the revised section, 9 FAM 302.9-4(B)(3), the 30 days has virtually been expanded to 90 days now. Under the rule, "if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry...you may presume that the applicant's representations about engaging in only status compliant activity were willful misrepresentation of his or her intention in seeking a visa or entry." Some examples of conduct "inconsistent" with non-immigrant status include:
· Engaging in unauthorized employment
· Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant class (ie., studying on a B-2 tourist visa)
· A non-immigrant in B or F status, or any other status prohibiting immigrant 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
In practical terms, this new change could present serious issues for anybody who has worked without authorization or married their US Citizen/LPR spouse within 90 days of coming into the US. Whether in the context of consular processing abroad or adjustment of status in the US, these new changes portend problematic issues for those who may have unwittingly or innocently fallen into the above categories.
For more information on how allegations of fraud/misrepresentation and pre-conceived intent can impact your case, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.