Making sense of USCIS new 90 days rule

Last year the U.S. Department of State (“DOS”) updated the Foreign Affairs Manual eliminating the 30/60/90 day rule and to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. “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 DHS when applying for admission or for an immigration benefit.”

The so-called 30/60/90 day rule was an extremely important rule both for visa applicants and those applying for adjustment of status. In this post I’ll go over what the old rule used to be and explain how the new rule works.

Under the old rule the Department of State’s Foreign Affairs Manual and USCIS imposed a presumption of fraud on persons who entered the United States with a non-immigrant visa type (such as B tourist visa, business visitor, student, trainee etc.) and later married a U.S. Citizen and applied for adjustment of status within the first 30 days of entering the United States. To clarify, if an alien files for adjustment of status within 30 days of entry, the government can presume the person misrepresented his or her intention in seeking a visa or entry. A finding of misrepresentation or fraud can result in a drastic lifetime bar to entering the U.S. If the marriage and application for adjustment of status occurred more than 30 days, but less than 60 days, after the foreign national’s entry to the United States, the FAM provided some relief to individuals in such a situation by allowing them to rebut such a presumption of fraud. Finally, if the act occurs more than 60 days after admission into the United States, there is generally no basis for a misrepresentation or inadmissibility finding.

The new amended Rule: The Foreign Affairs Manual (“FAM”) now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” which states:

“If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”

In the event that a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit”, they are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

1. 1. Engaging in unauthorized employment;
   2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
   3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
   4. 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.

For marriage-based green card applicants this means that if you have entered the United States on a non-immigrant visa type, and you then marry a United States Citizen and apply for permanent residency within 90 days of your entry to the United States, immigration will perceive your immigrant filing as a willful misrepresentation of your true intention of entering the United States, which constitutes fraud. Accordingly, the foreign national will be placed in removal proceedings, and in addition, may be barred from gaining admissibility to the United States for life. Therefore, if the foreign national misrepresented his or her true intentions in gaining admission to the United States fraudulently either at the time of the visa application, at a DHS port of entry, or in filing for an immigration benefit with USCIS, the presumption of fraud will apply to the foreign national.

However, the amended FAM provides that “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, no presumption of willful misrepresentation arises.”

Theoretically, individuals who engage in ANY of the prohibited activities above while on a non-immigrant visa type, within 90 days of gaining admission to the United States, will be presumed to have committed fraud.

The 90-day rule technically applies only to the U.S. State Department. That means its direct effect is primarily on those applying for visas at U.S. consulates. But the old 30/60/90 day rule was also – in practice – applied by USCIS in an adjustment of status applications. Recently USCIS updated its Policy Manual clarifying its position on the U.S. Departments of State’s rule stating that “The 90-day rule is not a “rule” in the sense of being a binding principle or decision.  The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.

The new 90-day rule that replaces the 30/60 rule is clearly harsher as the presumption that the person misrepresented his or her intentions is for a 90-day period as opposed to a 30-day period. Still, like under the old guidance, the key issue is what the intention of the person was at the time of issuance of the visa or at the time of admission into the United States. Therefore, even if there was allegedly inconsistent conduct within the 90 days, there are ways to rebut the presumption. Applicants should not instinctively take extreme actions such as withdrawing an already filed adjustment application and switch to consular processing or refrain from filing such an application within 90 days. Rather, they should consult with an immigration attorney to determine whether there could be a defense to a potential allegation of misrepresentation.