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Understanding “Intent” for non-immigrants entering the United States

U.S. State Department and USCIS’s ‘90-Day Rule’

The U.S. Department of State and USCIS replaced their  “30/60-day rule” with a “90-day rule” as the standard applied by consular and immigration officers in evaluating inadmissibility for fraud pursuant to INA § 212(a)(6)(C)(i). The 90-day rule holds that a nonimmigrant is presumed to have made a willful material misrepresentation at the time of admission or application for a nonimmigrant visa when that nonimmigrant enters the United States and within 90 days engages in conduct inconsistent with his or her nonimmigrant status. The Foreign Affairs Manual at 9 FAM 302.9-4(B)(3) enumerates the following examples of inconsistent conduct:

  • working without authorization

  • enrolling in school when academic study is not authorized by their nonimmigrant status

  • marrying a U.S. citizen or lawful permanent resident and establishing residence in the United States when one is in B or F status

  • undertaking any benefit of a status or adjusting of status without the properly filing and being approved for such a change or adjustment.

The law requires that any person that engages in conduct that triggers a presumption of material misrepresentation, carries the burden to rebut the presumption. Clients should be prepared to show that they did not misrepresent their intentions when they applied for a nonimmigrant visa or that there was no intentional misrepresentation when they engaged in conduct inconsistent with their nonimmigrant status within 90 days of entry. Such conduct could include entering as a tourist and then working without authorization or marrying a U.S. citizen and applying for adjustment of status. For example, they should be prepared to explain why the decision to work or marry arose only after they entered the country based on new circumstances.

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