We previously blogged on the U.S. Department of State’s new September 2017 guidance relating to the term “misrepresentation” in 9 FAM 302.9-4(B)(3). In short, the guidance indicates that a U.S. consular officer may seek “potential revocation” or find an alien inadmissible if the alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry. Since then, in April 2018, the Foreign Affairs Manual (“FAM”) has been updated at 9 FAM 302.9-4(C)(1) to require consular officers to submit an Advisory Opinion “where an applicant engaged in inconsistent conduct within 90 days (the 90-day rule).”
However, USCIS updated its Policy Manual in March 2018 to indicate that the 90-day rule “is not binding on USCIS.” The Policy Manual now states:
The U.S. Department of State (DOS) developed a 90-day rule to assist consular officers in evaluating misrepresentation in cases involving a person who violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her intentions at the time of the visa application or to the immigration officer at the port of entry.
The 90-day rule is not a “rule” in the sense of being a binding principle or decision. The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures.
Thus, USCIS will make its own determination of whether an alien misrepresented his or her intentions at the time of entry, and will not by limited by the 90-day rule. It appears that USCIS has the correct interpretation of INA § 212(a)(6)(C) and that the question of visa fraud or misrepresentation cannot accurately be determined by rigid litmus tests, though it’s possible we begin to see the 90-day rule creep into USCIS adjudications.
Nevertheless, attorneys and visa applicants must be aware that switching from one visa category to another category – unless on a pure “dual intent” visa such as the H-1B or the L-1 – must be adequately explained to USCIS. This area of immigration law can be a minefield since decisions to change visa categories are often made on a variety of personal circumstances.