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Preconceived Intent and Activities After Entry: The New 90-Day Rule

In September, the Department of State (DOS) updated its Foreign Affairs Manual — a guidebook used by consular officials for determining visa eligibility — as to what constitutes misrepresentation when applying for a visa abroad.  As part of the Administration’s heightened scrutiny, a broader scope of inconsistent conduct within 90 days of entry to the United States will be reviewed to find a presumption of willful misrepresentation. DOS will look to information provided on the visa application, during the interview, and at the port of entry to see if activity in the United States within the first 90 days of entry conflicts with those statements. Such activity includes: unauthorized employment, enrolling in unauthorized academic studies, marrying a U.S. citizen or permanent resident (LPR) and taking up residence in the United States (other than those with visas that allow dual intent such as Hs and Ls), and engaging in activities that would typically require a change in status where none was done. This is critically important for those looking to come to the United States because an individual may be barred for life (unless an appropriate waiver is obtained) if they are found to have misrepresented important facts. USCIS has not yet updated its agency guidance to mirror the DOS’s position, and it is unknown if the agency will to so, given that there is legal precedent that governs USCIS and it would be required to undertake formal rulemaking. In any case, foreign nationals should be extremely mindful that their activities during the first 90 days of entry can be detrimental to their longer term immigration options. Previously, if an applicant applied for change of status within 30 days of entry, this created a presumption of misrepresentation. If the applicant did so between 30 and 60 days from entry, that presumption of intent to misrepresent could be rebutted by the foreign national. After 60 days, there was no presumption of preconceived intent or misrepresentation.