Why U.S. Consulate May Deny Your Visa Due to 90-Day Rule and Fraud During Past U.S. Trips

Are you applying for a visa to the U.S. after having spent time there in the past? Watch out for situations where the consular officer checks out what you did during your first 90 days in the U.S. and then decides it was inconsistent with the terms of the visa you used then; in which case you might have committed visa fraud and become inadmissible under I.N.A. 212(a)(6)(C). This section of U.S. immigration law bars U.S. entry to people who "by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States."

In Fall 2017, the U.S. Department of State (DOS) made significant revisions to its Foreign Affairs Manual, which changed the well-known visa fraud rule, commonly called the "30/60 Rule" to a new rule, the "90 Day Rule." These procedural rules help immigration officials determine whether someone lied or made a material representation in order to enter the United States.

(For more information on inadmissibility, see Inadmissibility: When the U.S. Can Keep You Out.)

Visa Fraud Could Land You a Lifetime Ban

The consequences for a material misrepresentation or fraud is a lifetime ban from entering the United States. As with any U.S. visa application or interview with an immigration official or border officer, it is best to remain honest. While you need not required divulge every detail if you are not asked for it, when asked a question, you should answer truthfully.

How Can Immigration Officials Detect Visa Fraud?

Some people wonder how the U.S. consulate or embassy can detect visa fraud. Here's an example:

Yvette, a citizen of Senegal, obtained a J-1 visa, a cultural exchange visitor visa which allows foreign residents to come to the U.S. temporarily to perform short-term work for an approved program sponsor. Yvette's J-1 visa allowed her to work at a specific U.S. summer camp for four months. However, while attending orientation a week after her arrival, her cousin, who lives in the U.S., was hospitalized. Yvette decided to help her cousin care for her children rather than work at the camp. She left the U.S. after three months.

A few years later, Yvette has married a U.S. citizen and is applying for a immigrant visa at the U.S. Embassy in Dakar. The application asks her questions about her previous visits to the United States. It is likely that Yvette's program sponsor will report to DOS that Yvette did not work for the summer camp on her J-1 visa.

Due to the 90-Day Rule, DOS will presume that Yvette misrepresented herself in order to obtain the J-1 visa, since she performed domestic work for her cousin while in the U.S. shortly after her arrival, which was inconsistent with the purposes of her visa.

When Yvette has her interview at the embassy, she will have the burden of proving that she did not commit visa fraud. She will need to show documents showing that she actually planned to remain in J-1 status when she obtained her visa and entered the U.S., in order to overcome this presumption. These could include emails to and from the summer camp counselors, confirmation of transportation to the summer camp, and an affidavit and medical records from her cousin detailing that Yvette had no plans to visit her until she learned that she was hospitalized.

In the end, it is the interviewer's choice whether to believe Yvette and to approve her visa application.

Differences Between the 30/60 Rule and the 90-Day Rule

It's possible you've heard about the older version of this rule, called the 30/60 Rule. Under that rule, consular and USCIS officials presumed that the immigrant lied if there was conduct (such as working on a student visa or coming to the U.S. to get married and stay permanently on a tourist visa) inconsistent with the terms of the visa that occurred within 30 days of entry to the United States. Any actions after 30 days but before 60 days were typically not considered to be fraud unless other evidence indicated otherwise. Conduct that occurred after 60 days of entry did not lead to a presumption of misrepresentation upon entry.

However, with the 90-Day Rule, a consular officer may presume misrepresentation for actions within 90 days of entry and may also make a determination that fraud existed long after 90 days have passed, if enough evidences supports that finding.

This policy is much broader than the previous one, giving U.S. immigration officials far more discretion in determining whether immigrants lied in obtaining a visa or immigration benefit.

Immigrants Adjusting Status to Permanent Residence in the U.S. Can Face Similar Scrutiny From USCIS

USCIS updated its own policy manual (Chapter 3 of Volume 8, Part J) to include mention of the 90-Day Rule. It pointed out that the State Department's 90-day rule is an analytic tool, not a binding principle or decision, and in particular not binding on USCIS. It stated that "USCIS officers must examine all of the factors in an applicant's case."

Nevertheless, the trend is for USCIS officers to ask about potential inadmissibility if applicants for benefits such as adjustment of status engaged in conduct inconsistent with nonimmigrant status within 90 days of their U.S. entry.

This is a huge issue with adjustment of status based upon marriage after entering the U.S. on a tourist visa, the Visa Waiver Program (VWP), or another short-term visa. Note the following example:

John, a U.S. citizen living near Washington DC, and Fernando, a citizen of Spain, are engaged. They knew about the K-1 visa that would have allowed Fernando to travel to the U.S. to be married and stay permanently; and they knew they could get married and later apply for an immigrant visa at a consulate abroad.

However, they decided that it would be less expensive and inconvenient for Fernando to simply travel to the U.S. on the VWP (which allows nationals from certain countries to enter without a visa and stay for a maximum of 90 days) and file for adjustment of status afterwards. Fernando traveled to the U.S. and told the border official at the airport that he was staying with his friend John and planned to sightsee. He does not mention that he is engaged to John or his wedding plans. Two weeks later, the couple is married at a reception with 100 people in attendance.

While it is not against the law to get married in U.S. while on a tourist visa or using the VWP, it is against the law to misrepresent your intentions to a border official in order to gain admission to the United States. If Fernando decides to stay in the U.S. and adjust status rather than returning to Spain, he will likely have difficulty convincing USCIS he did not commit visa fraud by planning to live in the U.S. permanently.

This is especially true since the couple will need to submit marriage evidence with their adjustment application, which will show that they planned a big wedding reception months before Fernando came to the U.S.—and got married two weeks later! Best-case scenario is that the USCIS officer overlooks the indiscretion and approves Fernando's green card, but there is the possibility that his green card would be denied, a fraud finding would be made, and Fernando would be returned to Spain with diminished hopes for ever again living in the United States.

The safest thing for Fernando to do is return to Spain within 90 days and obtain his green card through consular processing rather than apply using adjustment of status procedures. While he might face questions about why he told the border official that he was coming to the U.S. to sightsee when he actually got married, he will be able to sidestep any questions about lying about his intentions to live in the U.S. permanently after his travel on the VWP.

This doesn't mean it's impossible to get married and apply for a green card (or do something similar, like accept a job and apply for a green) within 90 days of entering the United States. But you would need to be ready to explain why your decision to work or marry wasn't made in advance of your travel to the U.S., but arose only later.