The ‘90 day rule’: U.S. complicates stance on determining preconceived intent
“… 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.”
Although the 90 day rule is a DOS policy used in determining foreign nationals’ eligibility for visas, the agencies of the Department of Homeland Security (DHS) and its branches may consider this when making their own determinations and adjudicating cases. As such, best practice would be to consider the policy in helping clients plan their short- and long-term strategies for travel and immigration to the U.S. — even where they will be dealing with a different government agency than the DOS.
Under the current rule, there is no period of rebuttable presumption of misrepresented intent. Instead, the bar has moved from 30 days to 90 days; within the full 90 days of entry to the U.S., any activity that brings into question the intent of a nonimmigrant visa holder may result in a presumption of misrepresentation or fraud. Activities that could trigger findings of fraud or misrepresentation may include:
- Engaging in unauthorized employment;
- Enrolling in a program of academic study while in a status that does not permit this;
- Marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S., while in a nonimmigrant status; and
- Engaging in any other activity requiring a change of status or adjustment of status from “visitor,” without first obtaining the change or adjustment of status.
There is no presumption of willful misrepresentation if one engages in any of the above activities after 90 days. However, a September 2017 DOS field cable to consular offices summarizing the 90 day rule does state that “if facts in the case give [the consular officer] 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, [the consular officer] must request an [Advisory Opinion] from [the Visa Office of Advisory Opinions] CA/VO/L/A.”
Informing clients who are considering a move to the U.S. of the heightened risks associated with entering as a visitor and changing or adjusting their status within 90 days of entry is key. Help them to determine other, legal ways to achieve their goals, such as applying for a fiancée visa or exploring creative means to allow them to apply for advance permission to work in the U.S. in one of the available employment-related visa categories.
Disclaimer: The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from our firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.