DOS Expands Presumption of Misrepresentation Rule to 90 Days

April 05, 2019

 

Update. On January 23, 2019 and April 1, 2019, DOS tweaked the 90-day rule language in the Foreign Affairs Manual (FAM) in a positive direction, by removing a reference that was thought to unfairly flag students. The helpful DOS edit was of the following item in the list at 9 FAM 302.9-4(B)(3)(g)(2), which contains examples of conduct that could lead to an automatic presumption of misrepresentation if it occurred within 90 days of admission to the United States:

  • 2017 language: “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”
  • 2019 language: “A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”

DOS also revised the heading of that section, 9 FAM 302.9-4(B)(3)(g), to use conditional language more in line with an evidence-based rather than categorical determination process. The heading now reads:

  • Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

But still keep in mind that the list in the FAM is not an exclusive list; it’s prefaced by, “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…” Nevertheless, the fact that students are no longer called out for unwarranted special scrutiny is always welcome.


The Immigration and Nationality Act provides:

INA 212(a)(6)(C)(i) [8 USC 1182(a)(6)(C)(i)]

(C) Misrepresentation.-

(i) In general. 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.

This statutory provision has existed unchanged since it was created by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996).

The Department of State (DOS) Foreign Affairs Manual at 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 in determining whether a willful misrepresentation has occurred is the "90-day" rule, which is described in .

The "90-Day Rule"

A key element of DOS policy in determining whether a willful misrepresentation has occurred is the "90-day" rule, which is described in 9 FAM 302.9-4.

Historical Note. The current version of 9 FAM 302.9-4 results from a 2017 expansion 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 current 90-day rule. See below for a comparison of the current rule to the prior rule. The principal difference is when engaging in activity inconsistent with your visa classification might raise a presumption of misrepresentation. DOS also tweaked the 90-day rule language in January and March 2019, but in a positive direction, by removing some references to students.

  • 30/60 day rule

    • Presumption of misrepresentation on inconsistent activity within 30 days of entry
    • Rebuttable presumption of misrepresentation on inconsistent activity within 60 days
    • No presumption of misrepresentation on inconsistent activity taken more than 60 days after entry
     
  • 90 day rule

    • Presumption of misrepresentation on inconsistent activity within 90 days of visa application or admission to the United States
    • No automatic presumption of misrepresentation on status violation or inconsistent activity taken more than 90 days after visa application or admission to the United States, but consular officer still has discretion to make a determination of misrepresentation

     

90-Day presumption of willful misrepresentation

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 admission to the United States" if, within 90 days of visa application or admission to the Unites States, an alien:

  • Violates his or her nonimmigrant status; or
  • Engages in conduct inconsistent with his or her nonimmigrant status, including, but not limited to:
    • "Engaging in unauthorized employment;"
    • "Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);"
    • "A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or"
    • "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."
     

9 FAM 302.9-4(B)(3)(g)(2)

(CT:VISA-757; 04-01-2019)

(2) Inconsistent Conduct Within 90 Days of Admission to the U.S.:

(a) If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, 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 admission to the United States. To make a finding of ineligibility for misrepresentation based on conduct inconsistent with status within 90 days of admission to the United States you must request an AO from CA/VO/L/A. However, the AO may be informal. See 9 FAM 304.3-2 and 9 FAM 302.9-4(C).

(b) 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 [NAFSA: emphasis added]:

(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 status, 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.

Status violation or inconsistent activity after 90 days

If a person violates status or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises. However, if consular officers have "reason to believe" that someone misrepresented his or her purpose of travel at the time of the visa application or application for admission an inconsistent activity, they still have the discretion to request an advisory opinion and make a misrepresentation determination even if it occurred after 90 days, if the circumstances warrant.

9 FAM 302.9-4(B)(3)(g)(3)

(CT:VISA-757; 04-01-2019)

(3) Inconsistent Conduct After 90 Days: If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises. However, if you determine that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you may request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal. See 9 FAM 304.3-2 and 9 FAM 302.9-4(C).

The FAM reminds consular officers of the "reason to believe" standard when determining misrepresentation. This is based on the general rule at 22 CFR 41.121(a) that requires consular officers to "either issue or refuse the visa" when a visa application has been properly completed and executed, and the requirement at 22 CFR 41.121(b) to inform the applicant of the ground of ineligibility when the consular officer "knows or has reason to believe a visa applicant is ineligible."

9 FAM 302.9-4(B)(3)(g)(1)

(CT:VISA-757; 04-01-2019)

(1) In General:

(a) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit. Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.

(b) The fact that an alien's subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien's intentions were misrepresented at the time of either the visa application or application for admission to the United States. To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the "reason to believe" standard, which requires more than mere suspicion and is akin to probable cause. See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013). If the activities happened within 90 days after the visa application and/or application for admission to the United States, please see paragraph (2) below.

Note: The case notes must reflect that, when applying for admission into the U.S. or for a visa, the alien stated either orally or in writing to a consular or immigration officer that the purpose of travel was consistent with the nonimmigrant visa class sought. (For example: "The officer finds that the applicant told the officer at the port of entry that his purpose of travel was consistent with the visa class held.")

Rebutting a finding of willful misrepresentation

9 FAM 302.9-4(B)(3)(h) is fittingly titled, Rebuttal Burden is on the Alien. That paragraph instructs consular officers:

9 FAM 302.9-4(B)(3)(h)

(CT:VISA-757; 04-01-2019)

(3) Rebuttal Burden is on the Alien. The burden of proof falls on the alien to rebut the consular officer's findings of a material misrepresentation based on a violation of status. The alien must establish to the satisfaction of the consular officer that his or her true intent at the time of the presumptive willful misrepresentation was consistent with his or her nonimmigrant status. You should provide the alien the opportunity to rebut by verbally presenting the applicant with your factual findings... If you are satisfied that the applicant did not make a material misrepresentation, and the alien is otherwise eligible, process the case to conclusion.

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

9 FAM 302.9-4 includes detailed guidance for consular officers on interpreting and applying the INA 212(a)(6)(C)(i) "misrepresentation" ground of inadmissibility. It begins by summarizing the general rule.

9 FAM 302.9-4(B)(1), Criteria for Finding, provides that "In order to find an alien ineligible under INA 212(a)(6)(C)(i), the consular officer must determine that the following four elements have been satisfied":

  1. There has been an affirmative act of misrepresentation made by the applicant; See 9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation

  2. The misrepresentation was willfully made; See 9 FAM 302.9-4(B)(4), Interpretation of the Term Willfully

  3. The fact misrepresented is material (See 9 FAM 302.9-4(B)(5), Interpretation of the Term Material Fact); 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 (See 9 FAM 302.9-4(B)(2), Different Standards for Finding of Fraud or Willfully Misrepresenting a Material Fact, and 9 FAM 302.9-4(B)(7), Interpretation of the Terms "Other Documentation" and "Other Benefit")

Read the entire 9 FAM 302.9-4 entry. Students and scholars with detailed questions or who need legal advice regarding the misrepresentation ground of inadmissibility, however, should seek legal counsel. A few key provisions from the general FAM guidance are outlined below.

Misrepresentation

9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation, 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)(i) [8 USC 1182(a)(6)(C)(i)] ground of inadmissibility, it "must have been made to an official of the U.S. Government; generally speaking, the official will normally be either a consular officer or a Department of Homeland Security (DHS) officer."

9 FAM 302.9-4(B)(3), Interpretation of the Term Misrepresentation 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)(i) [8 USC 1182(a)(6)(C)(i)] 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 Defined. 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 admission to the United States, is material if either:

(1) The alien is ineligible 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.) This is also often referred to as "The Rule of Probability."

Note: 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, admission to the United States, or other immigration benefit."

Wilfullness

Finally, a misrepresentation must be "willful" to trigger INA 212(a)(6)(C)(i) [8 USC 1182(a)(6)(C)(i)], 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."

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), and 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 its USCIS Policy Manual, but treats it as "simply an analytical tool," rather than a "binding principle."

USCIS Policy Manual, Volume 8, Part J, Section A.3

3. The U.S Department of State's 90 Day Rule

The U.S. Department of State (DOS) developed ​a​ 90-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who ​​violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her​ intentions at the time of the visa application or to the immigration officer at the port of entry​.​

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.

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.

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.