Consequences of the new 90-day 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.

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. 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.

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