30/60/90-Day Policy Revised on Misrepresentation and Preconceived Intent21 Sep 2017
On September 1, 2017, the U.S. Department of State (DOS) revised its Foreign Affairs Manual (FAM) policy guidance to consular officers regarding “misrepresentation” under the Immigration and Nationality Act (INA) § 212(a)(6)(C)(i). In particular, the DOS changed its policy on when a consular officer can “presume” (make a determination without any additional facts or evidence) that a visa applicant lied about whether s/he intended to remain in the United States permanently. Many types of U.S. visas require that an applicant demonstrate “nonimmigrant intent” – in other words, that s/he plans to visit the U.S. for a limited period of time and then depart after the objectives have been accomplished. It is a misrepresentation under the INA to lie about one’s intentions to obtain such a nonimmigrant visa.
Previously, DOS policy applied the so called 30/60-day rule to determine whether a consular officer could presume that a visa applicant had lied about her/his intentions, based on actions after entering the U.S. For example, an applicant receives a B-2 (visitor) visa, and then enters the U.S., marries a U.S. citizen, and applies for his/her green card. When can the officer “presume” that the applicant had lied about the reasons for seeking a B-2 visa? Under the 30/60-day rule, a consular officer could presume misrepresentation if conduct “inconsistent” with being a visitor (such as getting married or filing an application for a green card) took place within 30 days of entry into the United States, and was allowed to make a finding of misrepresentation if the conduct took place within 60 days and the other facts of the case supported such a determination. After 60 days, it was presumed that no misrepresentation was committed by the visa applicant, even if conduct inconsistent with being a nonimmigrant occurred.
The new policy, however, provides that a consular officer may presume misrepresentation for inconsistent conduct within 90 days of entry and may make such a determination at any time thereafter, if the facts of the case support such a determination. The new policy is much broader, therefore, and likely will result in increased misrepresentation findings by consular officers, which carry severe immigration consequences.
Misrepresentation under INA § 212(a)(6)(C)(i) and its Application within 90 Days
INA § 212(a)(6)(C)(i) provides that a foreign national who makes an intentional, material misrepresentation to a U.S. government official while seeking to obtain an immigration benefit is permanently inadmissible to the United States. The FAM acknowledges that it is often difficult for consular officers to make a determination as to a foreign national’s actual intent at the time that a statement or application was made.
For instance, if a B-2 visitor advises a U.S. Customs and Border Protection (CBP) officer of plans for spending time with relatives in the United States, but then goes on to marry a U.S. citizen, does this mean the visitor committed fraud? Or, did the visitor just happen to fall in love during the visit and decide to stay in the United States after getting the visa and entering the country? In the past, a consular officer would look to the 30/60-day rule to answer this question; now, an officer would use the far more open-ended 90-day rule.
The Old 30/60-Day Rule
The DOS created the 30/60-day rule to make it easier for consular officers to make decisions in these cases. Under the rule, a consular officer could presume misrepresentation if conduct inconsistent with a foreign national’s visa classification and stated purpose for visiting the United States took place within 30 days of entry. While the foreign national could overcome the presumption of misrepresentation with evidence of her/his true intent, the burden of proof fell on the foreign national. If the conduct took place within 60 days of entry, a consular officer could find misrepresentation if the facts of the case established a reasonable belief that the foreign national misrepresented his/her intentions. Inconsistent conduct that occurred more than 60 days after admission into the United States was not considered grounds (by itself) for a finding of misrepresentation.
Therefore, in the example above, if the foreign national married and/or filed for adjustment within 30 days of entry into the United States, the consular officer would presume that the individual intended to do so all along and misrepresented those intentions to the officer. Absent strong evidence that marriage and an application for permanent residence was not the foreign national’s true intent, the officer would find the visitor inadmissible under INA § 212(a)(6)(C)(i). If the individual married or filed for adjustment within 60 days of admission, the officer would look closely at the facts of the particular case to determine whether there was misrepresentation. Typically, after 60 days, no such finding would be made.
The New 90-Day Rule
The new policy has scrapped the previous 30/60-day rule. Now consular officers are directed to presume that a foreign national misrepresented his/her reasons for traveling to the U.S if that individual engages in inconsistent conduct within 90 days of admission to the United States.
Inconsistent conduct that occurs more than 90 days after admission may allow for a finding of misrepresentation, depending upon the facts of the case and whether they create a reasonable belief that misrepresentation occurred. Unlike the previous rule, there is no amount of time after which a consular officer is instructed not to find misrepresentation. Presumably, therefore, the risk exists of a misrepresentation finding under INA § 212(a)(6)(C)(i) if a foreign national engages in conduct inconsistent with the visa classification or stated purpose for visiting the United States at any time after admission.
The new DOS policy is much broader and increases the chances of a misrepresentation finding under INA § 212(a)(6)(C)(i). Given the harsh and permanent penalty for misrepresentation, foreign nationals should not conceal from government officials their true intentions for travel to the United States, and should seek legal advice from experienced immigration attorneys if those intentions change. The Murthy Law Firm has helped in many cases with 212(a)(6)(C) findings at U.S. consular posts and after entry into the U.S. The challenge is much greater with the broader new DOS policy increasing the numbers of people who will be adversely affected.
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