Breaking News 09.11.2017

Change of Status, Adjustment of Status Cases Face New Challenge

For many years, the State Department and DHS (and legacy INS) applied a 30/60-day rule regarding potential misrepresentations and how they might affect changes of status from one NIV category to another, or adjustment of status from NIV to permanent resident.

The prior State Department FAM (Foreign Affairs Manual) entry read:

"(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presume that the applicant's representations about engaging in status-compliant activity were misrepresentations of his or her intention in seeking a visa or entry. For a finding of an inadmissibility for inconsistent conduct within 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or her nonimmigrant status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4(C)(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrant status more than 60 days after admission into the United States, the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)(C)(i) inadmissibility."

On September 1, 2017, the State Department modified the FAM to read:

" g. (U) Activities that Indicate Violation of Status or Conduct Inconsistent with Status

(1) (U) In General:

(a) (U) In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants and been admitted to the United States, either:

(i) (U) Apply for adjustment of status to lawful permanent resident; or

(ii) (U) Fail to maintain their nonimmigrant status (for example, by engaging in unauthorized study or employment).

(b) (U) Applications for adjustment or change of status in the United States are adjudicated by U.S. Citizenship and Immigration Services (USCIS), other than in those cases where the application is made before an Immigration Judge. If you become aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit, you may bring the derogatory information to the attention of the Department for potential revocation. See 9 FAM 403.11-5 . If you become aware of derogatory information indicating that an alien in the United States without a valid visa but who is not a Lawful Permanent Resident may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit, then you may enter a P6C1 lookout in CLASS with the appropriate information. See 9 FAM 403.10-3(C)(1). Do not request an advisory opinion from the Advisory Opinions Division (CA/VO/L/A) in these cases, because it would not be binding on USCIS.

(c) (U) With respect to the second category referred to above in subparagraph g(1)(a)(ii), nonimmigrant visa holders who fail to maintain their nonimmigrant status, the fact that an alien's subsequent actions are inconsistent with those stated at the time of visa application or admission or in a filing for an immigrant benefit does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry. You should consider carefully the precise circumstances of the change in activities when determining whether the applicant made a knowing and willful misrepresentation. To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the "reason to believe" standard, which requires more than mere suspicion but less than a preponderance of the evidence.

(2) (U) Inconsistent Conduct Within 90 Days of Entry:

(a) (U) However, if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal. See 9 FAM 304.3-2 .

(b) (U) For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien's nonimmigrant status includes, but is not limited to:

(i) (U) Engaging in unauthorized employment;

(ii) (U) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii) (U) 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

(iv) (U) 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.

(3) (U) After 90 Days: If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, no presumption of willful misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4(C)(2)). "

A blog entry at www.bibdaily.com contains links to both the old and the new versions here: https://goo.gl/oGFvN7

Before making any changes or plans regarding travel, career or marriage, please consult with an attorney at Ware|Immigration regarding this important policy change!

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