30/60 Day Rule Eliminated from Foreign Affairs Manual Provisions on "Misrepresentation"

On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual ("FAM") with new guidance on the term "misrepresentation" for purposes of determining inadmissibility under INA § 212(a)(6), which provides:

Any alien who, 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, is inadmissible.

Specifically, 9 FAM 302.9-4(B)(3)(g) and (h) have been substantially revised, the "30/60 Day Rule" has been eliminated, and new sections regarding status violations or "inconsistent conduct" within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.

Though the wording is slightly different, both the former FAM guidance and the new FAM guidance describe the following actions that are sufficient to trigger the application of the rule:

  • Engaging in unauthorized employment;

  • Enrolling in a full course of academic study without authorization and/or the appropriate change of status;

  • A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States;

  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.

Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred within 30 days of entry. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a "reasonable belief" that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary.

To date, the USCIS Policy Manual has not been updated to reflect the FAM changes. However, the USCIS Policy Manual states that adjudicators "should keep in mind that the 30/60 day rule is not a 'rule' in the sense of a binding principle of decision. The rule is simply an analytical tool that may be helpful in resolving in a particular case whether a person's actions support of finding of fraud or misrepresentation." The Policy Manual also emphasizes that "[o]fficers must not use Foreign Affairs Manual (FAM) guidance in a denial."

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