New Department of State Guidelines for Determining Misrepresentation upon entry into the U.S.
Since September 2017, the Department of State (DOS) has amended the "30/60-Day Rule" regarding misrepresentation upon entry into the U.S. Some actions, as discussed in the posting, may lead to a finding of misrepresentation and result in consequences of the visa holder. It is important that employers and their foreign national employees remain in compliance with visa requirements.
Prior to September 1, 2017, the U.S. Department of State (DOS) implemented what was commonly referred to as the “30/60-Day Rule” when determining what actions suggest misrepresentation upon entry into the U.S. The rule detailed that a foreign national who has engaged in any conduct considered inconsistent with his or her nonimmigrant status (see list below for examples) within the first 30 days of entry was presumed to have misrepresented their intent to adhere to the requirements of his or her visa. If the foreign national violated the visa’s terms between 30 days and 60 days after entry, he or she was not presumed to have misrepresented his or her intentions, but any facts supporting a “reasonable belief” or suspicion by the DOS could be grounds for finding misrepresentation. After 60 days in the U.S., a foreign national could engage in actions inconsistent with their visa without being presumed to have misrepresented their intentions or being subjected to any “reasonable belief” suggesting visa fraud.
Since September 1st, 2017, the DOS has amended the “30/60-Day Rule”, extending the presumption of misrepresentation to a 90-day period. This essentially means that any actions that might suggest a violation of a foreign national’s nonimmigrant status within 90 days of entry into the U.S. will be presumed to indicate their misrepresentation of intent to comply with their visa. Furthermore, after the 90-day period, a consular officer, in conjunction with the DOS Advisory Opinions Division, may still determine that a foreign national has misrepresented his or her intentions based on a factually-supported “reasonable belief” that fraud has been committed. A determination of misrepresentation could lead to a permanent ban from the United States due to visa fraud.
This change in policy could have drastic effects on foreign nationals who plan on changing their visa status within 90 days of entry. For example, if a foreign national suddenly enrolls in academic study on a B-1 temporary business visitor visa, which does not normally allow study, within 90 days of entry, he or she may be presumed to have engaged in misrepresentation. Even if aforementioned foreign national enrolls in academic study after 90 days, he or she may still be subject to further scrutiny by the DOS. Actions found to be inconsistent with the current visa may also affect a foreign national’s pending or future applications to adjust or change status or other visa considerations.
All foreign nationals with nonimmigrant visas should take precautions to comply with their visa status for the entire duration of their stay in the U.S. The following actions, if inconsistent with visa requirements, may lead to a finding of misrepresentation if they occur within 90 days of entry:
Marriage to a U.S. citizen or lawful permanent resident and then residing in the United States when possessing a nonimmigrant visa that does not permit immigrant intent;
Enrollment in any academic course or study that is unauthorized under certain nonimmigrant visas, such as the B-1 visa for temporary business visitors.
Employment that is in violation of a foreign national’s nonimmigrant visa (ex. B-1/B-2 visitor visas);
Engagement in any activity that is inconsistent with the requirements of the current visa that is only permitted under a different visa classification.
This guidance, along with enhance screening procedures, is one of several policy updates issued by the Trump administration last year to tighten existing immigration policies. These policies, known as “extreme vetting,” have made visa applications both in the U.S. and at U.S. consulates abroad more difficult. Foreign nationals and companies that employ them in the U.S. should ensure visa requirements are respected at all times and consult with an immigration attorney if their plans change so they can maintain compliance with their current visa or change their visa status as necessary.