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New 90 Day Rule in Foreign Affairs Manual Addresses Misrepresentation

The Department of State has made revisions to the Foreign Affairs Manual (FAM) in regards to immigrants who intentionally misrepresent facts in order to obtain a visa or other permission to enter the United States. In particular, the 30/60 day rule has been entirely eliminated and replaced with language that describes a new “90 day rule.” Many people who seek a status adjustment after coming to the US could be negatively or unexpectedly impacted by this 90 day rule if they are within the country due to the permissions granted by a nonimmigrant visa.

The 90 day disciplinary rule for misrepresentation can be triggered by:

  • Participating in employment that is unlawful or otherwise unauthorized.
  • Participating to any degree in educational advancement or academic work that is not authorized or is not correct for the proposed change of status.
  • Marrying and living with a legal permanent resident without having the appropriate immigrant status that permits such a marriage.
  • Conducting any sort of immigration-related activity that calls for a mandatory status adjustment but intentionally failing to petition for or make that status adjustment.

If a person holding nonimmigrant status within the country participates in any of the aforementioned barred behaviors and actions within 90 days of first arriving in the United States, then the new 90 day rule can apply and consequences could form. The previous rule only imposed the same consequences within the first 30 days of a nonimmigrants entry, meaning the rule was essentially extended threefold. The previous rule also allowed some leniency to consequences or investigations if the misrepresentation or misconduct occurred between the 31st and 60th day of the nonimmigrants entry to the country.

It is also worth noting that even on the 91st day or any day after, there can still be immigration status consequences for misrepresentation. It will be up to United States Citizenship and Immigration Services (USCIS) agents to determine if the misrepresentation occurring after the 90 days was planned during the initial 90 days but postponed to try to sidestep the 90 day rule. Furthermore, the USCIS Policy Manual states directly that the previous 30/60 day rule was not a “binding principle” but more of a guideline. The leniency in the definition has always allowed the extension or flexibility of potential penalties for misrepresentation.

Potential Impact on Adjustment of Status Filings

The new 90 day rule will most likely be significant for the frequent practice that individuals may come to the United States as a B-2 visitor, marry within 90 days of arrival, and then file for adjustment of status for lawful permanent residence. The current change has only been to the Department of State’s Foreign Affairs manual, but USCIS is expected to make this change shortly as well. That is to say, this change will most likely be applicable to all cases of immigration.

For more information about the 90 day rule and how it could affect you as an immigrant, family member of an immigrant, or even a business that employs an immigrant, Akula & Associates, P.C. and our Dallas immigration attorneys are here to help. With decades of total legal experience focused exclusively on immigration law and a history of appreciative client testimonials to back up our reputation, you can trust in our ability to navigate any issue you are facing, or just further explain this new 90 day rule. Call (844) 299-5003 or contact our firm online to request a consultation with our team.

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