Nonimmigrant Status 30/60 Day Rule Amended to Impose Stricter Requirements for “Inconsistent Conduct”

The U.S. Department of State (“DOS”) has amended a section of the Field Adjudicators Manual (“FAM”) which pertains to government officials’ determinations of misrepresentation by applicants and specifically with respect to activities permitted in the U.S. on nonimmigrant visas. 9 FAM 302.9-4(B)(3) has been amended to include a section called “Inconsistent Conduct Within 90 Days of Entry” and which creates a presumption of misrepresentation by a foreign national for certain conduct within 90 days of entering the U.S.   This amendment replaces the prior 30/60 day rule.

What is “Inconsistent Conduct Within 90 Days of Entry”?

The new section allows an immigration officer to determine that a foreign national has provided false information or has otherwise willfully misrepresented material facts if he or she “violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.”   In general terms, the government does not allow undertaking any activity during this term for which a change of status would be required.   This determination would cause a foreign national to be deemed inadmissible due to misrepresentation.

The FAM provides some specific examples of impermissible conduct:

• working without authorization in the U.S.;
• enrolling in a school if study is not authorized by the status (for example, B status holders are not allowed to enroll in school while on B status); or
• marrying (or, presumably, filing for an immigrant benefit) a U.S. citizen or green card holder and taking up residence in the U.S.

Activities After 90 Days Following Entry

Conduct undertaken more than 90 days after U.S. entry and which conduct is not consistent with a specific nonimmigrant status may still cause problems, but FAM makes the distinction that there is no automatic willful presumption that there was willful misrepresentation by the foreign national at the time of visa application or admission into the U.S.    However, an immigration officer can still make a determination of willful misrepresentation if there are additional facts in the case.

Previous 30/60 Day Rule and Effective Date of New Rule

Previously, the willful misrepresentation applied within the first 30 days following entry into the U.S. and was further weakened 60 days after U.S. entry.     The main issue of this FAM amendment is the fact that these changes were implemented without advance warning and may impact negatively foreign nationals who have taken steps in reliance of the previous rule.

Conclusion

We caution travelers to the U.S., especially those who are in the U.S. on nonimmigrant status such as B (visitor) or F (student) to exercise caution especially with respect to activities within the first 90 days following entry into the U.S.    The amended FAM rule provides broad authority to an immigration officer to find willful misrepresentation in many situations, particularly for B or F status holders.

We urge foreign nationals who are either in the U.S. on B or F status to plan carefully and assess permissible activities during their entire period of stay, but particularly for the first 90 days.

Please do not hesitate to contact us if we can be of any help in analyzing particular circumstances or otherwise in connection with this FAM revision.   We have a number of consultation and other engagement options.  Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.