DOS Expands Presumption of Misrepresentation Rule to 90 Days

October 05, 2017

 

Effective August 1, 2017, the Department of State (DOS) revised its Foreign Affairs Manual (FAM) guidance on how consular officers should make determinations of inadmissibility under INA 212(a)(6)(C). That section of law provides in general that,

"Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible."

The "90-Day" Rule

9 FAM 302.9-4 includes detailed guidance for consular officers on interpreting and applying the "misrepresentation" ground of inadmissibility. A key element of DOS policy is the "90-day" rule, which establishes a presumption of willful misrepresentation "if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry." That is to say, if these actions occur within 90 days of entry, a consular officer "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."

The current FAM entry is an expansion effective August 1,2017 of what previously had been the "30/60 day" rule. The prior 30/60 day rule worked in a similar way, on the same basis as the 90-day rule. See the next section for a comparison of the current rule to the prior rule.

9 FAM 302.9-4 gives the following examples of "conduct that violates or is otherwise inconsistent with an alien's nonimmigrant status," for purposes of applying the 90-day rule -

For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien's nonimmigrant status includes, but is not limited to:

(i) Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii) 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

(iv) 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.

To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, consular officers must request an Advisory Opinion from the Advisory Opinion Division of the Office of Legal Affairs in the Visa Office of the Department of State Bureau of Consular Affairs (CA/VO/L/A).

Conduct inconsistent with status more than 90 days after entry

9 FAM 302.9-4 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. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A."

Additional DOS guidance

DOS also sent a field cable to consular offices [17 State 95090 (Sep 16, 2017)], summarizing the "90-day rule" as follows:

2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into 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 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. You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

Comparing the current 90-day rule to the prior 30/60-day rule

The "90-day" rule described in 9 FAM 302.9-4 is an expansion effective August 1,2017 of what previously had been the "30/60 day" rule. Here is a brief comparison:

  • 30/60 day rule. The window during which an activity inconsistent with the initial visa classification could trigger inadmissibility under INA 212(a)(6)(C) was 30 days.
    • 90-day rule. Under the new rule, the window is expanded to 90 days, instead of 30.
     
  • 30/60 day rule. If an inconsistent activity took place after 30 but within 60 days after entry, no presumption of misreprestation arose, but if the facts in the case gave the consular officer "reasonable belief" that the alien misrepresented him or herself, the officer was instructed to "give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A."
    • 90-day rule. The new rule applies this same "reasonable belief" standard to inconsistent activities that occur 90 days after entry.
     
  • 30/60 day rule. If a status violation or inconsistent activity took place after 60 days of entry, "the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)(C)(i) inadmissibility."
    • 90-day rule. Under the new rule, there is no outside limit on when an inconsistent activity or status violation occurring after 90 days might give rise to "reasonable belief" that the alien misrepresented his or her intent. In general, though, the more attenuated an activity is from the date of entry, the less likely it is that it could lead to a "reasonable" belief that it was a misrepresentation.
     

The nature of the activities viewed as "inconsistent" has not changed much from prior policy, but the specific wording could still lead to different interpretive results. Here is how the list of activities under the 90 and 30/60 day rules compare:

Prior 30/60 Day Rule Current 90 Day Rule
Actively seeing unauthorized employment and, subsequently, becomes engaged in such employment 

Engaging in unauthorized employment

Enrolling in a full course of academic study without the benefit of the appropriate change of status 

Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status)

Marrying and taking up permanent residence 

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

Same as under 90 day rule 

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

DOS Policy and DHS Determinations and Adjudications

The 90-day rule is a policy of the Department of State regarding eligibility for visa issuance. Although the Department of Homeland Security (DHS) and its branches (USCIS, ICE, CBP) are not bound by the policies of another agency, they can consider such policies when making their own independent determinations and adjudications.

Volume 8, Part J of the USCIS Policy Manual, for example, presents that agency's internal guidance on the interpretation and application of misrepresentation under INA 212(a)(6)(C)(i). That Part instructs USCIS officers in general that,

"As long as there is a reasonable evidentiary basis to conclude that a person is inadmissible for fraud or willful misrepresentation, and the applicant has not overcome that reasonable basis with evidence, the officer should find the applicant inadmissible.

USCIS takes note of the DOS FAM guidance in Chapter 3.a.3 of that Part, which reads:

3. The U.S Department of State's 30/60 Day Rule

The U.S. Department of State (DOS) has developed a 30/60-day rule to assist consular officers in evaluating misrepresentation in cases involving a person who was in the United States and whose conduct is or was inconsistent with representations made to the consular officer concerning his or her intentions at the time of the visa application.

An officer should keep in mind that the 30/60 day rule is not a "rule" in the sense of a binding principle of decision. The rule is simply an analytical tool that may be helpful in resolving in a particular case whether a person's actions support of finding of fraud or misrepresentation. Officers must not use Foreign Affairs Manual (FAM) guidance in a denial.

Note that USCIS has not yet updated its Policy Manual to reflect DOS' change to the "90-day" rule.

Although USCIS is instructed not to base a denial directly on the inadmissibility rules in the DOS Foreign Affairs Manual, applicants for USCIS benefits should be aware that they may be called upon to present evidence to address any misrepresentation concerns that USCIS might have.

There is also long-standing precedent on the related concept of "preconceived intent." The USCIS Adjudicator's Field Manual states, for example:

AFM 30.3(c)(3)(D) Note 2. Preconceived Intent. The adjudicator will encounter applications where it appears, either from the statements made on the application or from the sequence of events (from initial visa application and issuance, admission, obtaining supporting documents for a new status, until the date of filing) that the applicant concealed his or her true purpose for entering the U.S., either on the visa application or to the inspector at the time of admission. Most frequently, this situation occurs in requests to change status from B-2 to F- 1. The issuance dates of Forms I-20, affidavits of support , etc. are often helpful in determining whether preconceived intent or actual fraud exists.

USCIS policy discourages such deliberate actions. In cases where the new status is one which requires substantial financial assets by the applicant or an overseas sponsor, the consular officer in the applicant's home country is in a better position to assess the situation than a USCIS adjudicator. Similarly, where an applicant's overseas employment or ties to his or her home country are at issue, again the consular officer on the scene can most easily assess eligibility.

Although the facts in such situations could be indicative of actual visa fraud, more often the appropriate course of action may be to deny the application as a matter of discretion. A denial would not be warranted simply because an applicant entered as a visitor, for example, and was later offered an opportunity to attend school, receive specialized training or accept employment. It is necessary to look closely at the facts of the particular case, examining such facts as dates on supporting documents. If necessary, seek additional information from the applicant concerning all facts leading to his or her request.

A series of precedent decisions and court cases uphold USCIS's decision to deny a change of status in such a situation. Matter of Hsu, 14 I&N Dec. 344 (R.C. 1973), denied a change of status to an applicant who obtained a visa under the pretext of a visit for business when the actual purpose was to seek acceptance at a school. In Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), the Board ruled that even the applicant's claim that she was misinformed by a consular officer regarding the need for a student visa was insufficient to justify entry as a visitor. In Seihoon v. Levy, 408 F. Supp. 1208 (D. La. 1976), the court upheld the decision to deny an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process.

And so, once again, applicants for USCIS benefits should be aware that they may be called upon to present evidence to address any misrepresentation or preconceived intent concerns that USCIS might have.

Additional Background on DOS Interpretation of INA 212(a)(6)(C)(i)

9 FAM 302.9-4 begins by summarizing the general rule:

In order to find an alien inadmissible under INA 212(a)(6)(C)(i), it must be determined that:

(1) There has been a misrepresentation made by the applicant;

(2) The misrepresentation was willfully made;

(3) The fact misrepresented is material; and

(4) The alien by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.

9 FAM 302.9-4 defines "misrepresentation" for this purpose as:

"... an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information."

For a misrepresentation to trigger the INA 212(a)(6)(C) ground of inadmissibility, it "must have been practiced on an official of the U.S. Government, generally speaking, a consular officer or a Department of Homeland Security (DHS) officer."

9 FAM 302.9-4 also distinguishes misrepresentation from other similar concepts:

Misrepresentation v.Failure to volunteer information

"In determining whether a misrepresentation has been made, it is necessary to distinguish between misrepresentation of information and information that was merely concealed by the alien's silence. Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i)."

Misrepresentation v. Fraud

"... a finding of "fraud" requires a determination that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer. Further, the representation must have been believed and acted upon by the officer... On the other hand, "material misrepresentation" includes simply a willful misrepresentation, which is relevant to the alien's visa entitlement. It is not necessary that an "intent to deceive" be established by proof, or that the officer believes and acts upon the false representation... Most cases of inadmissibility under this section will involve "material misrepresentations" rather than "fraud" since actual proof of an alien's intent to deceive may be hard to come by."

Materiality

A misrepresentation must also be of a "material fact" to trigger the INA 212(a)(6)(C) ground of inadmissibility. 9 FAM 302.9-4(B)(5) provides a lengthy interpretation of the term "material fact" for this purpose, prefaced by the following general principles:

"Materiality is determined in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien's application for a visa. The Attorney General has declared the definition of "materiality" with respect to INA 212(a)(6)(C)(i) to be as follows: "A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(1) The alien is inadmissible on the true facts; or

(2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he or she be inadmissible." (Matter of S- and B-C, 9 I & N 436, at 447.)"

Wilfullness

Finally, a misrepresentation must be "willful" to trigger INA 212(a)(6)(C). 9 FAM 302.9-4(B)(4) defines "willful" for this purpose, as:

"... knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement... An alien who acts on the advice of another is considered to be exercising the faculty of conscious and deliberate will in accepting or rejecting such advice. It is no defense for an alien to say that the misrepresentation was made because someone else advised the action unless it is found that the alien lacked the capacity to exercise judgment."