In today’s climate, it is hard to go without a day where immigration law is not in the spotlight. However, even in 2017, some immigration regulations and policies can change quietly and without much fanfare. The case in point is the September 1, 2017, Department of State’s new guidance as to misrepresentation based on conduct. Specifically, the new guidance applies to individuals who are present in the United States as tourists, students, and other non-immigrants, but engage in behavior “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.” See 9 FAM 302.9-4(B)(3).
This new policy is very significant because foreign nationals can now be found inadmissible to the United States for fraud and willful misrepresentation if they engage in conduct inconsistent with the terms of their nonimmigrant status within 90 days of entry (used to be 60 days). This conduct includes, but is not limited to, the following:
- Working in the United States without authorization
- Enrolling in a course of academic study, if this is not permitted for that nonimmigrant status (for example, a visitor for pleasure)
- Marrying a United States citizen or a lawful permanent resident in the United States and taking up residence in the United States for visitors (B visa holders), students (F visa holders), and any other nonimmigrants who are in the United States a temporary basis
- 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
If foreign nationals violate or engage in conduct inconsistent with the terms of their nonimmigrant status after 90 days of entry, a presumption of willful misrepresentation will not automatically arise. Government officials will, however, have discretion to look at the totality of circumstances to determine if these foreign nationals were untruthful about the purpose of their admissions to the U.S.
U.S. Citizenship and Immigration Services has yet to issue a formal policy update, but it is expected that this new rule will be widely accepted and followed. Visitors, students, or other nonimmigrants whose status does not allow immigrant intent should contact experienced immigration attorneys before they seek to change their status or apply for permanent residency in the United States.
ABOUT THIS AUTHOR
Richard M. Wilner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.
Agnieszka (Aggie) Dolinska
Aggie Dolinska is an Associate Attorney with Wilner & O’Reilly, APLC, and heads the firm’s removal defense practice group. She is Board Certified as a specialist in immigration and nationality law by the State Bar of California’s Bureau of Legal Specialization. Ms. Dolinska’s immigration practice involves all areas of Immigration and Nationality Law, including family and employment-based immigration, non-immigrant visas, removal defense, litigation, and asylum law. Ms. Dolinska is currently the head of the litigation and deportation department in our office. Her removal defense practice includes representing clients in proceedings before the Immigration Court and on appeal with the Board of Immigration Appeals and the Court of Appeals for the Ninth Circuit.