Introduction and Implications of New 90-Day Rule

On September 16, 2017, the Department of State released a news release pertaining to guidance regarding the 90-day rule, or "inconsistent conduct within 90 days of entry."

The rule is part of the most current Field Adjudicators Manual (FAM) and provides consular officers with guidance on how to interpret "misrepresentation" as it relates to aliens in the U.S. This type of "misrepresentation" is when aliens "conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to the Department of Homeland Security when applying for admission or for an immigration benefit."

The 90-day rule was formerly known as the "30/60 day rule," but the timeframe was changed by interagency working groups for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before obtaining a change or adjustment of status. The 90 day rule does not work retroactively. If an alien violates or engages in conduct inconsistent with the individual's nonimmigrant status within 90 days of entry, the officer can presume that the original representations to the officer were "willful misrepresentations" of the individual's true intentions in entry.

What is the impact of this rule?

If a consular officer becomes aware of a "willful misrepresentation," he or she must bring the information to the Department for further action.

An alien who is found to practice "willful representations" could be inadmissible, and may be barred from entering the U.S. for life.

What is "inconsistent conduct"?

Below are some examples of what can be considered violations or inconsistencies of conduct.

• Unauthorized employment
• Enrolling for academic study when unauthorized
• Marrying a U.S. citizen or green card holder and living with that individual after entering on a visa prohibiting immigrant intent (B, F)

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the U.S., there is typically no presumption of willful misrepresentation. However, officers may still attempt to revoke the visa if there is "reasonable belief" that the alien misrepresented willfully at the time of visa application or application for readmission.

Nonimmigrants who enter the U.S. on a B or F visa, or any other nonimmigrant visa that does not allow immigrant intent, should be extremely careful regarding the risks of filing an adjustment of status, extension of status, or change of status application within 90 days after entry. Individuals should remain cautious if filing one of the aforementioned applications even after the first 90 days, and should be able to prove that a specific event occurred that caused the change in plans and desire to immigrate.

This information comes from a news release for the American Immigration Lawyers Association (AILA Doc. No. 17100431).

If you have any specific questions, please contact our legal team.