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FAM: Presumption of Fraud for Non-Immigrants Seeking Adjustment of Status within 90 Days of Entry

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In a continuing saga, the President is maintaining his hardline stance on immigration, this time expanding into the realm of legal immigration. Earlier this month, the Department of State released an amended version of the Foreign Affairs Manual (FAM) used by governmental agencies and other federal agencies as a manual, which directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

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.

The manual sets out a list of activities which may support a presumption of fraud or material representation by an individual applying for any immigration benefit:

  • 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 and applied for adjustment of status within the first 30 days of entering the United States.

The FAM outlined that an immigration officer should presume that such a person misrepresented his true intention in coming to the United States, and accordingly that a presumption of fraud should be imposed, because a foreign national who enters the United States on a non-immigrant visa type promises to engage in conduct that is consistent with their non-immigrant visa status. An individual who has entered the United States on a non-immigrant visa type for the purposes of immigrating to the United States has evaded the laws of the United States in hiding their true intentions, in seeking to immigrate to the United States. The FAM however provided some relief to individuals in such a predicament by allowing them to rebut such a presumption of fraud if the marriage and application for adjustment of status occurred more than 30 days, but less than 60 days, after the foreign national’s entry to the United States.

Amended Rule: The amended FAM provides that beginning September 1, 2017 the 30/60-day rule will no longer be followed. Now, a presumption of fraud will be imposed for persons who have married a US Citizen and applied for adjustment of status to permanent residency within 90-days of their entry to the United States. The 90-day rule is referred to as “inconsistent conduct within 90 days of entry” in the FAM.

Per the new rule: 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.

This means that if you have entered the United States on a non-immigrant visa type, and you then marry a United States Citizen, and apply for permanent residency within 90 days of your entry to the United States, immigration will perceive your immigrant filing as a willful misrepresentation of your true intention of entering the United States, which constitutes fraud. Accordingly, the foreign national will be placed in removal proceedings, and in addition may be barred from gaining admissibility to the United States for life. Accordingly, if the foreign national misrepresented his or her true intentions in gaining admission to the United States fraudulently either at the time of the visa application, at a DHS port of entry, or in filing for an immigration benefit with USCIS, the presumption of fraud will apply to the foreign national.

90-days + Rule: However, the amended FAM 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.”

Individuals who engage in ANY of the prohibited activities above while on a non-immigrant visa type, within 90 days of gaining admission to the United States, will be presumed to have committed fraud.

In the language of the law:

FAM 302.9-4(B)(3): THE PART IN PURPLE IS WHAT HAS BEEN MODIFIED ON SEPTEMBER 1, 2017

  1. 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. (no change)

(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)).

  1. (U) Evidence of Violation of Status: 

(1)  (U) To find an alien inadmissible under INA 212(a)(6)(C)(i) based on a violation of status, there must be evidence that, at the time of the visa application, admission into the United States or in a filing for an immigration benefit (e.g., an application to change or extend a stay in nonimmigrant status), the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was inconsistent with the intended nonimmigrant classification.  Ordinarily, such evidence would be in the form of an admission, from information taken from the alien’s nonimmigrant visa (NIV) application, or a report by an immigration officer that the alien made such a statement (e.g., as would be found on the DHS Form I-275, Withdrawal of Application/Consular Notification).

(2)  (U) The burden of proof falls on the alien to establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.  You must give the alien the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it. In the absence of any further offering of proof by the alien to rebut the presumption of willful misrepresentation based on his/her activity within 90 days after entry to the United States, a finding of ineligibility will most likely result

(a)  (U) If you are satisfied that the presumption is overcome, and the alien is otherwise eligible, process the case to conclusion.

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