Effective August 1, 2017, the Department of State (DOS) revised its Foreign Affairs Manual (FAM) guidance on how consular officers should make determinations of inadmissibility under INA 212(a)(6)(C). That section of law provides in general that,

"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 or other benefit provided under this Act is inadmissible."

The "90-Day" Rule

9 FAM 302.9-4 includes detailed guidance for consular officers on interpreting and applying the "misrepresentation" ground of inadmissibility. A key element of DOS policy is the "90-day" rule, which establishes a presumption of willful misrepresentation "if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry." That is to say, if these actions occur within 90 days of entry, a consular officer "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."

The current FAM entry is an expansion effective August 1,2017 of what previously had been the "30/60 day" rule. The prior 30/60 day rule worked in a similar way, on the same basis as the 90-day rule.

9 FAM 302.9-4 gives the following examples of "conduct that violates or is otherwise inconsistent with an alien's nonimmigrant status," for purposes of applying the 90-day rule -

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) Engaging in unauthorized employment;

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

(iii) 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) 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.

To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, consular officers must request an Advisory Opinion from the Advisory Opinion Division of the Office of Legal Affairs in the Visa Office of the Department of State Bureau of Consular Affairs (CA/VO/L/A).

Conduct inconsistent with status more than 90 days after entry

9 FAM 302.9-4 provides that:

"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."

Additional DOS guidance

DOS also sent a field cable to consular offices [17 State 95090 (Sep 16, 2017)], summarizing the "90-day rule" as follows:

2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by: 1) engaging in unauthorized employment; 2) enrolling in a course of unauthorized academic study; 3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or 4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation. You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe 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.