NEW 90 Day Rule: Presumption of Fraud for Non-Immigrants Seeking Adjustment of Status within 90 Days of Entry

Learn more about the new 90-day presumption of fraud rule in this video and how it affects the adjustment of status of foreign nationals living in the United States.

0:24 – New Rule Changes

0:52 – What is 90-day Rule Do?

1:37 – Our advice or suggestions for this new rule

Overview: 

WHO:

In September 2017 the Department of State released an amended version of the Foreign Affairs Manual (FAM), which is a manual used by governmental agencies and other federal agencies that directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

WHAT:

The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.

According to the amended FAM: If a foreign national engages in any of the following activities, and applies for an immigration benefit, the FAM directs immigration officers to apply a presumption of fraud or material misrepresentation when the foreign national seeks adjustment of status:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
  • A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Old Rule: Previously, the rules set out by the Foreign Affairs Manual and USCIS imposed a presumption of fraud on persons who entered the United States with a non-immigrant visa type (e.g. as a tourist, business visitor, student, trainee etc.) and subsequently married a U.S. Citizen or LPR, and applied for adjustment of status, within the first 30 days of entering the United States.

New Rule: The new rule imposes a presumption on fraud within the first 90 days of the foreign national’s entry to the United States on a non-immigrant visa type, if the foreign national marries a U.S. Citizen or legal permanent resident within the first 90 days of their entry into the country (see below).

If the beneficiary violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, the officer may presume that the applicant’s representations about engaging in only status complaint-activity were willful misrepresentations of his or her intention in seeking a visa or entry.

Recommendation: If you enter the US with a non-immigrant visa type, do not marry a U.S. Citizen or Legal Permanent Resident within the first 90 days of your entry, otherwise immigration will presume that you entered the United States with the intent to obtain a green card, and that your marriage is NOT bona fide. Although foreign nationals accused of fraud may file a waiver to rebut the presumption of fraud, a waiver approval is not guaranteed, and is worth much time, effort, and money on your part.

For more information please contact our office for a free first time consultation.

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