On September 1, 2017, the Department of State updated the Foreign Affairs Manual (FAM), redefining what is meant by “misrepresentation” as it concerns inadmissibility to the United States. This involved replacing the old “30/60 Day” rule with a new “Inconsistent Conduct Within 90 Days” rule. The old rule stated that misrepresentation occurring within the first 30 days of entry necessitated an Advisory Opinion; between 30 and 60 days of entry could be argued with applicable evidence; and after 60 days could not constitute grounds for inadmissibility.
Similar to the old rule, the new “90 Day” rule concerns foreign nationals who engage in unauthorized work, enroll in unauthorized academic study, marry a USC or LPR in a nonimmigrant status that prohibits immigrant intent, or partake in any other activity that requires a change/adjustment of status without first being granted said change/adjustment.
Under the new rule, a presumption of willful misrepresentation will be applied to individuals who violate the terms of their status within the first 90 days of entry, and will require an Advisory Opinion. After 90 days, no presumption of misrepresentation will arise due to a violation of status. However, if evidence can support a “reasonable belief” that misrepresentation occurred at the time of visa application, the Consular Office must request an Advisory Opinion. Therefore, foreign nationals should consider the risks before changing status within 90 days of entry. For more information, please visit: https://fam.state.gov/, or contact an immigration attorney so that he or she may explain how this change impacts you.