90-Day Rule, Conduct Which is Inconsistent with Status: Heads-Up to B-Visa, F-Visa, and Potential AOS Nonimmigrants

Written by: Joseph M. Spesia, Esq.

The United States Department of State has promulgated new policy regarding the conduct of certain nonimmigrants. Because of increased findings of willful misrepresentation by nonimmigrants coming to the United States, the Department of State now institutes a 90-day rule which governs conduct of certain nonimmigrants during their first 90 days in the United States. The new rule provides that:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… [the 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 rule goes on so list some examples of specific conduct. Those instances are as follows:

(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.

I suppose it is unclear whether USCIS intends to adopt these policies as well, but individuals can seriously limit their risk by complying with this rule no matter the circumstance (e.g. USCIS processing or Consular Processing Abroad). We will continue to monitor the situation to see if USCIS issues similar policy changes in the future or if they make an official statement on this matter. Just remember, in circumstances such as this, taking the safe road can go a very long way in avoiding problems for years to come.

If you find yourself in a situation where you may be subject to this presumption, that you willfully misrepresented your nonimmigrant status, you will need to build a case to overcome the presumption. This is no easy task, and consulting with an Attorney can help to assess the likelihood of success moving forward. In all cases, it is best to avoid such a battle and choose the visa which accurately conforms to your plans once present in the United States.