December 12, 2017

December 11, 2017

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New DOS Rule Regarding Misrepresentation – An End to the 30/60 Day Rule

On Sept. 1, 2017, the U.S Department of State (DOS) updated the Field Adjudicators Manual (FAM) at 9 FAM 302.9-4(B)(3).  The Field Adjudicators Manual (FAM) serves to guide consular officers in their adjudications process, and this particular section provides guidance regarding “misrepresentation” by applicants “at the time of visa application or to DHS when applying for admission or for an immigration benefit.” The changes include the addition of a section entitled “Inconsistent Conduct Within 90 Days of Entry.” The new language effectively eliminates the prior “30/60 day rule” which found a presumption of misrepresentation only if an alien engaged in activity inconsistent with their nonimmigrant status within 30 days of admission, and generally no basis for misrepresentation if an action was taken after 60 days.  A finding of misrepresentation can have extreme consequences.  With this recent change there are several things to keep in mind:

  • New guidance may have negative consequences for individuals who have relied upon the old rule as well as those who make immigrant filings in the future.

  • Individuals cannot engage in any activity within a 90-day period of entering the United States that is inconsistent with the immigration classification under which they entered the country.

  • Those who do perform activities that are inconsistent with their status may be found to have made a willful misrepresentation when securing the visa at the Consulate or when entering the United States and being inspected by an immigration officer.  Such individuals may be found inadmissible and barred from entering the United States for life.

  • Types of impermissible conduct:

    • Getting married in the United States within 90 days of entering the country on a visa that requires an intent to return to your home country (e.g., B visa, Visa Waiver Program, J-1, F-1, etc.)

    • Working without authorization

    • Enrolling in school when such activity is not permitted by the visa (for example B visas and the Visa Waiver Program do not allow for school enrollment)

  • The new rule was announced without any warning or period of public comment.  Public comment is not required but the sudden nature of the change increases the number of potential individuals impacted.

  • Under the old rule if an individual engaged in any of the above conduct within a 30-day period, a finding of fraud or misrepresentation could be presumed.  Now that period is extended to 90 days.

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About this Author

Ian Macdonald, Business Immigration attorney, Greenberg Traurig, regulatory compliance lawyer, benefits transferability legal counsel, employment litigation risk, corporate representation
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Ian R. Macdonald focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

Ian and his team work closely with companies to manage and modify, where needed, corporate immigration programs to maximize efficiency, service and regulatory compliance levels. He is experienced with the...

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Courtney B. Noce focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN).

Courtney works closely with companies on complex challenges associated with I-9 employment verification, enforcement actions, as well as H-1B and LCA compliance. She provides proactive strategies in the form of onsite training, internal audits and reviews, as well as deploying best practices to minimize exposure and liabilities in the event of government investigations.

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