How New Policy Affects Visitors, Students, and other Non-Immigrants in the United States
An important message for those of you planning enter or pass through the US on a non-immigrant visa, including visitor and student visas: The U.S. Department of State has recently changed its policy in the Foreign Affairs Manual (“FAM”) regarding the formerly known 30/60 day rule. The amendment provides broader grounds for immigration officers to find that foreign nationals misrepresented their intentions when they come to the United States on a non-immigrant visa. This is an important consideration for anyone coming to the United States on a temporary visa. Any finding of fraud or representation could possibly result in serious consequences, up to and including permanent grounds of inadmissibility.
Remember, any non-citizen who seeks to spend time in the U.S. either arrives in country as an “immigrant” seeking Permanent Residence, or a “non-immigrant” here for a temporary stay. To qualify for entry to the United States as a non-immigrant, a person must intend a temporary stay and must intend to leave the U.S. after the temporary stay. This includes B-1/B-2 visitors, F-1 Students, and many other non-immigrant categories.
Here is what we know about the recent change: The latest FAM amendment covers conduct that may be inconsistent with notions that visa applicants made to consular officers at the time of application for a nonimmigrant visa OR to Customs and Border Protection officers at any US port of entry during the time of admission. Immigration authorities look to actions that might be inconsistent with a non-immigrant’s stated purpose on intent. That is, if you, as a non-immigrant, try to come to the U.S. as a visitor, and then immediately apply for Permanent Residence, immigration authorities may assume you lied about your intent when entering the country.
Under the old policy, actions taken after 60 days were presumed to be acceptable, with the assumption that after 60 days a person can reasonably change their mind about their intent.
Under the new policy, imposed by the current administration, inconsistent conduct will be suspect if it occurred within 90 days of entry, expanding the period beyond the 60-day period under previous policy. Even more interesting…consular officers are now instructed to automatically assume the applicant’s representations regarding engaging in “compliant behavior” were indeed willful misrepresentations about their intentions in order to gain entry to the United States.
According to the FAM, the following are examples of inconsistent conduct that could result in the presumption of willful misrepresentation or in other words, trigger them to investigate your situation further:
- 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 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
- 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.
Previously, civil actions such as marriage were given relatively little weight in considering allegations of visa fraud or other immigration violations. Also, under the previous 30/60 day policy, actions taken after the 60-day mark were assumed to be acceptable and not an indication of misrepresentation.
Now, not only has the FAM extended the period for increased scrutiny, but non-immigrants lose the presumption that actions taken after 60 days represent a reasonable change in intention. Instead, immigration officers are instructed to assume misrepresentation based on inconsistent conduct within the first 90 days of entry, and, more impactfully, the new policy allows immigration officers broader discretion to make a finding of misrepresentation even after the 90-day period.
The question remains how seriously immigration authorities will view indications of inconsistent conduct after 90 days of entry. The new policy, as listed in the FAM, provides that if a foreign national engages in inconsistent conduct to the terms of their nonimmigrant status more than 90 days after their entry to the US, there will be no presumption of willful misrepresentation. However, if officers happen to find facts that indicate an applicant has misrepresented his or herself, they are required to request an Advisory Opinion at the Department of State level. This may be reasonable legal grounds to contest adverse decisions under the new policy.
However, the fact remains that the new policy is decidedly more strict and unyielding, providing substantially greater grounds for denying immigration benefits for an increasing number of people, particularly those who entered as B visitors or F-1 students.
This new policy presents two major consequences:
1. Non-immigrants such as B visitors and F-1 students should be more careful about activities while in the United States, particularly within the expanded 90-day period for increased scrutiny of your actions. Non-immigrants should seek advice of immigration counsel before making major life changes.
2. Applicants for temporary visas to the United States may see more difficult standards for visa issuance. It is now very important to thoroughly document ties to your home country and to be clear about your intent. The risk that your intent might be misinterpreted is significantly greater, and the potential consequences for future immigration to the United States are significantly more serious.
Streff Legal can provide assistance to help applicants demonstrate non-immigrant intent for visa issuance, as well as to help non-immigrants in the United States understand what are appropriate activities based on your visa status. Please contact us or a licensed attorney to ensure you remain in full compliance with the ever-changing U.S. immigration policy.