In September of 2017, the State Department quietly changed the rules that consular officers must follow when determining whether a foreign national has made a misrepresentation of a material fact. Consular officers are frequently required to evaluate foreign nationals’ activities in the United States that violated or were inconsistent with the status they used to enter the United States. The activities that foreign nationals most commonly engage in that violate their status includes working without employment authorization, engaging in unlawful study, and applying for a green card from a status that does not allow those activities. Under those circumstances the consular officer needs to determine whether the foreign national misrepresented their intentions when they applied for the visa or spoke to immigration control prior to entering the United States. If a foreign national is found to have made such a misrepresentation, then they are generally inadmissible to the United States.
In 1991, the State Department implemented the “30/60 Day Rule” which held that if the inconsistent activity occurred within 30 days of the foreign national’s entry, then there was a rebuttable presumption that the foreign national misrepresented themselves. If the inconsistent activity occurred between 31 and 60 days of their entry to the United States, then the presumption was that they did not misrepresent themselves, though a consular office could still make a finding of misrepresentation if they had a reasonable belief that the foreign national misrepresented their intent. If the inconsistent action occurred more than 60 days after their entry, then the consular officer generally would not consider that the foreign national misrepresented themselves based solely on the conduct unless there was compelling evidence that fraud or a misrepresentation actually occurred. This rule attempted to balance a sliding scale of presumption that also acknowledged that a foreign nationals’ plans may change after they enter the United States.
New 90 Day Rule
In September of 2017, the State Department amended the Foreign Affairs Manual to replace the “30/60 Day Rule” with a new “90 Day Rule.” Under this new rule, if the inconsistent activity occurs within 90 days of the foreign national’s last entry to the United States, then the consular officer may presume that the foreign national misrepresented themselves. If the inconsistent activity occurs more than 90 days after the foreign national’s entry to the United States, then the presumption is that the foreign national did not misrepresent themselves.
While this new rule can affect foreign nationals utilizing any temporary visa, it will likely have the largest impact on individuals who enter the United States on the Visa Waiver Program (VWP). The VWP allows nationals from certain countries to travel to the United States for business or pleasure for up to 90 days, without needing to first obtain a visa overseas. It is a very restricted status, and foreign nationals who enter the United States using it generally cannot work, study, receive an extension of their stay, or change into another classification. As a result, if a foreign national enters the U.S. on the VWP and then works or studies illegally, they will be virtually assured to have a presumption that they misrepresented themselves and therefore would be generally inadmissible to the United States. Under the old 30/60 Day Rule the same foreign national would not receive the same presumption, so long as the illegal employment began at least 31 days after they entered the United States.
While the new rule lengthens the time frame during which consular officers assume there was a misrepresentation, the question of whether there was actually a misrepresentation or not turns on the intent of the foreign national during the course of the initial visa application and interactions with customs and border agents.
Additionally, the presumption that the foreign national misrepresented themselves is rebuttable. If the foreign national can present compelling evidence that they really did not intend on violating their status and that circumstances changed dramatically after they entered the U.S., then the consular officer may not find that the foreign national misrepresented themselves (though there may be other ramifications from their activities). Under the new rule, the consular officer is required to request an official opinion from the State Department before they can enter their finding that a misrepresentation occurred.
It is important to note that while the 90 Day Rule at first blush appears to be a clear-cut amendment to a preexisting standard, important questions remain unanswered. For example, we do not know whether this new rule applies to situations that occurred prior to its enactment, or whether in these circumstances the old 30/60 Day Rule should be applied. The State Department issued a Cable memo on the 90 Day Rule on September 16, 2017 that contradicted itself by stating that while the new guidance should not be applied retroactively, the 90 Day Rule will apply to all adjudications that occur after September 1, 2017. We will provide updates should there be clarification relating to outstanding questions.
For more information about the 90 Day Rule, or to ask a specific question, please contact any of the immigration attorneys at Parker Gallini LLP.
Grant Godfrey is an immigration attorney at Parker Gallini.