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.
Keep reading for more information about what this rule change means and how you can make sure not to trigger the suspicion of immigration officials.
There is a ground of inadmissibility under I.N.A. 212(a)(6)(C) applying to any alien "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.”
The consequences for a material misrepresentation or fraud is a lifetime ban from entering the United States.
(For more information on inadmissibility, see Inadmissibility: When the U.S. Can Keep You Out.)
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.
Under the 30/60 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 generally not considered to be fraud unless there was other evidence showing otherwise. If there was conduct occurring after 60 days of entry, there was no presumption of misrepresentation.
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, and gives immigration officials far more discretion in determining whether immigrants lied in obtaining a visa or immigration benefit.
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.
Although USCIS has not yet (as of early 2018) updated its own policy manual to include the 90-Day Rule, it will likely follow suit in the future. 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 D.C., 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 decide that it will 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 travels to the U.S. and tells the border official at the airport that he is staying with his friend John and plans to sightsee but 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 may 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.