30/60 Day Rule Eliminated From FAM Provisions On "Misrepresentation"
Author: New York Immigration Lawyer Alena Shautsova
The US government is tightening the way they handle various Immigration issues, and one big change came this September, 2017: the FAM regulation was changed to eliminate the famous 30/60/90 rule.
FAM stands for “foreign affairs manual.” It is a code that all consular officers have to follow when they consider US visa applications.
When a person applies for a US visa, he/she has to abide by the conditions of that visa once in the US. For example, if one declares on his/her visa application that he/she will be coming to the US as a tourist, then he/she should not be violating the conditions of that visitor status: this person cannot legally work in the US, undertake residence in the US, etc. Things, however, may change. The FAM regulations provided answers to the officer as to when and how to decide if a person violated his/her visa conditions willfully and whether such a person should be found to have committed a misrepresentation on his/her visa application or at the time of entry.
Previously, the officers used 30/60/90 rule to determine if a person who entered the US on a non-immigrant visa and later applied for an adjustment of status or change of status committed a misrepresentation and as such would be regarded inadmissible. Basically, the old rule stated that if a person engaged in an activity that was not consistent with his/her status within 30 days of arrival, then there will be a presumption that the person committed a misrepresentation. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a “reasonable belief” that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary. Violations after the 90 days, would not have been held against the person in connection with a misrepresentation charge.
The new rule will take into consideration the person’s conduct within 90 days of the entry. If a person engaged in an inconsistent activity after 90 days of his/her entry, no presumption of misrepresentation would arise. However, if a Consular Officer determined that there is “reasonable belief” that the individual misrepresented the purpose of his/her travel, instead of giving a person an opportunity to present evidence to the contrary, the Consular Officer would request an Advisory Opinion.
The FAM applies to those who are filing their applications overseas. However, in the past USCIS officer followed the same or very similar regulations. USCIS manual, however, has not been updated so far, but chances are, it will be amended, or at least USCIS officer will follow the same rules.
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