One of the more difficult concepts when reviewing a potential new immigrant’s chances for applying for permanent residence in the United States is that of preconceived intent.
When applying for a temporary visa in the United States, a person must actually have an intention to remain in the United States on a temporary basis and be limited by the rules of that visa. Similarly, when a person enters the United States on a particular temporary visa (or visa waiver), they must again represent that they truly only intend to remain in the United States on a temporary basis and will abide by the rules of the visa. Intending anything else is a material misrepresentation to Immigration (in other words, a lie).
Up until recently, two of the main agencies that handle immigration matters – the Department of State & the Department of Homeland Security – have been in agreement on how to determine a person’s actual intent. The Department of State (DOS) is the agency that manages and controls the U.S. Embassies and Consulates abroad (amongst other things). They have their own rules and guidance as to how to proceed with immigration applications, just as the Department of Homeland Security (DHS) does for its own offices within the United States.
For years, it has been standard policy that the 30/60 day rule has been enforced for both applicants inside and outside of the United States. In brief summary, the 30/60 day rule explains a fairly simple timeline. If, in the first 30 days after a person’s entry to the United States, they act inconsistently with their status (for example, working without authorization, applying for permanent residence, etc.), it is assumed that the person “misrepresented” his or her intention when either obtaining a temporary visa or entering the United States. In simple terms, they just cannot believe that someone would so drastically change their mind and decide to stay within a matter of thirty days; they must have intended to stay here all along and lied either at the border or when applying for their visa.
If, in the first 31-60 days after a person’s entry to the United States, they act inconsistent with their status (for example, working without authorization, applying for permanent residence, etc.), it is assumed that there was a misrepresentation, but it can be argued otherwise if the person has convincing evidence. In other words, between days 31-60, if there is a good reason for a person to change their mind and intend to stay (for example, a sudden illness, death of a family member, etc.), and they can present evidence of that change, then they may not be accused of misrepresenting their intentions.
With actions taken more than 60 days after entering the United States, there is generally no assumption at all. It is important to note that a finding of misrepresentation or fraud can result in a drastic lifetime bar to entering the U.S.
However, without notice or warning, this decades old policy suddenly changed on September 1, 2017. The DOS just indicated that they have changed their interpretation of a misrepresentation as it relates to persons inside the United States. They have rejected the concept of a 30/60 day rule and have now instituted a flat 90 day rule.
The new 90-day rule now states that any “conduct inconsistent” with the status granted within 90 days of entry will result in an assumption that there was a willful misrepresentation when the person applied for a visa or entry to the United States. DOS officers are instructed that, if they find that someone in the United States has applied for permanent residence (their “green card”) or otherwise committed some act inconsistent with their visa’s intent, they must bring this attention to the DOS for potential revocation of their visa.
Policy Change: Inconsistent Conduct
The new 90-day rule refers to any activity inconsistent with their status. This may include working without authorization, enrolling in courses without authorization (for example, a person on a visitor visa), marrying a U.S. Citizen/Permanent Resident and taking up residence with them, even potentially overstaying their visa, or doing anything else that would require or change of status.
Policy Change: Timing
If actions are taken within 90 days of the person’s entry that are inconsistent with their visa, it is up to the applicant to prove that they truly intended to follow the rules of their visa when they entered the United States or applied for their visa. Consular officers are given the directive to allow the person an opportunity to respond and prove otherwise.
If the activities occur outside of the new 90-day rule, there is no assumption. However, if it becomes clear that the intent was still invalid when entering the United States, then the Consular officer may still seek to revoke the visa.
Policy Change: Is this retroactive?
In short, it is not yet known. The DOS just updated their rules online and this only became effective very, very recently. Thus far, DHS has not copied the same change — and neither office has discussed whether this is retroactive. The DOS version does not say it is retroactive, but does say that it is effective as of September 1, 2017. So far, there has been no clarification on whether this will affect applications for permanent residence that are already filed or will be filed.
Policy Change: Potentially Targeted Persons
It appears that the DOS could be specifically targeting Visa Waiver or short-term visitor applicants, as they are the main people who are only allowed 90 days in the United States. In the case of a person in the United States on a Visa Waiver, for example, they are generally only granted a maximum of a 90-day stay; actions (such as marriage) taken while they are in status could be seriously problematic. It is also worth noting that there is also existing case law that states that, for immediate relatives of U.S. citizens at least, the potential of preconceived intent may be outweighed by the importance of the relationship itself. However, even if the application is filed after 90 days, it is cautioned that the person may need to prove the change in desire to return home was not actually made within the first 90 days.
What Does This Mean?
There is no guarantee that DHS will follow suit and move to a 90-day rule as well; however, considering the dramatic changes in immigration policy over the last six months, it is also very possible it could change without notice as well. If you feel that you might be affected by this new rule and are concerned about your immigration status in the United States, or a pending application, you should seek out an experienced immigration attorney to review your options.