On September 1, 2017, the Department of State updated the legal standard in determining what behavior constitutes a “misrepresentation” for purposes of determining inadmissibility. The U.S. immigration laws state that “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.” More specifically, the updated legal standard speaks directly to those who are admitted to the U.S. on a nonimmigrant visa, and violate that status within 90 days.
In the past, the government had a 30/60 Day Rule, which provided officers a guideline to determine if there was any misrepresentation. Under the rule, inconsistent conduct within 30 days of entry created a rebuttable presumption of misrepresentation. Inconsistent conduct after 30 days of entry, but within 60 days of entry, did not create a presumption of misrepresentation, but scrutiny would be high.
This guideline has now been eliminated, and revised to look at status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry. Essentially, it extends the time that one is under scrutiny for violation of their original status, to 90 days, and thereafter. Violations of status include engaging in unauthorized employment, or enrolling in a full course of academic study without authorization and/or the appropriate change of status. Violations may also include a nonimmigrant marrying and then applying for adjustment of status.
The notion of misrepresentation and preconceived intent are two separate issues. For immediate relatives of U.S. citizens, the notion of preconceived intent is not a problem under current case law. However, misrepresentation at any point still comes into play. A hypothetical scenario would be: Sue enters the U.S. on a visitor visa, with the intent to enter and marry her U.S. citizen boyfriend. At the airport, Sue tells the Immigration Officer that she is only here to visit her grandmother for a week. If Sue marries her boyfriend and applies to adjust status, her preconceived intent to enter and marry her boyfriend is not an issue. However, her misrepresentation to the Officer at the airport is a problem, and she may need a waiver of inadmissibility.
The law in this regard can be complicated, so speak to a knowledgeable attorney if this updated provision can affect you.