On September 1, 2017, the Department of State issued new guidance for consular officers when adjudicating visa applications, updating what conduct is considered "misrepresentation." At present, this guidance only applies to those seeking visas through a consulate, and not to those applying for immigration benefits within the U.S. through USCIS.
The law, under the INA, has long penalized foreign nationals "who willfully misrepresent a material fact" while seeking to procure a visa or other immigration benefit. If a foreign national is found to have made a willful misrepresentation, they are inadmissible and subject to a ten-year, and in some instances, a lifetime bar to future admissibility. The new guidance updates this law specifically relating to what conduct is considered misrepresentation within 90 days of entry, paying particular attention to conduct inconsistent with the terms of the visa a foreign national entered on. This guidance replaces the old "30/60 Rule."
Previously, under the "30/60 Rule," if a foreign national applied for adjustment of status within 30 days of entering the U.S. with a nonimmigrant visa, the government would presume that person misrepresented their intention in seeking a visa or entry. If a foreign national applied after 30 days of entry but before 60 days, no presumption of misrepresentation arose, but if the officer had a reasonable belief that intent was misrepresented, based on the facts, the foreign national had to present countervailing evidence. If the foreign national applied of adjustment of status after 60 days of admission into the U.S. there was no basis for finding misrepresentation based on the filing timeline.
However, the new guidance creates a presumption of willful misrepresentation for any foreign national whose "conduct is inconsistent" with the original visa they entered on within 90 days of their entry. According to the Foreign Affairs Manual ("FAM"), this includes the following conduct:
- Marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S., after entering as a nonimmigrant;
- Enrolling in a course of academic study, if not authorized under the visa used for entry (such as with a visitor visa);
- Engaging in unauthorized employment; or
- Undertaking any activity which would require an adjustment of status, without obtaining such adjustment.
If a consular officer finds evidence of such action occurred within 90 days of entry, it is then the foreign national's burden to establish their "true intent" and that the intent was "permissible under their nonimmigrant status." After 90 days there is no presumption, but an officer can deny or seek to revoke a visa if there is a "reasonable belief" of misrepresentation.
At this time, this guidance applies to consular offices only and USCIS has not made any corresponding updates to its Policy Manual, and so the 30/60 Rule presumably would still apply for foreign nationals applying within the U.S. There is not yet information on whether USICS will keep the existing rule, or adopt the new Department of State guidance, and accordingly we would advise extreme caution in relying upon the 30/60 Rule for the indefinite future.
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