Immigration Lawyer in Houston: New State Department 90-Day Rule

November 17, 2017 Posted in misrepresentation

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As an immigration lawyer in Houston, I often get questions about whether a person’s visa application will be denied. Sometimes the questions are legitimate. One common example is that people want to know if applying for a job or attending a job interview without a work visa is acceptable, and if a subsequent application for a work visa will be affected by this. Generally, the answer is “no,” but we strongly recommend that anyone coming for interviews or to apply for jobs be prepared to be questioned about it at the port of entry.

Schedule a consultation with the Law Office of Kathryn N. Karam

Sometimes we hear people ask if it’s a good idea not to mention something. For example, one recent example was a woman who had citizenship in two different countries, and used one of the passports in a visa application. The visa was refused. She was now preparing to apply for a visa using her other passport, and wondered if she could say she’d never been refused a visa since the prior refusal happened when she was using the other passport.

Here, our response is that if you’re asked “have you ever done X?” it doesn’t matter whether you did X with one passport or another – if you’ve done X, you have to disclose it.

 

Willful Misrepresntation Under the Immigration & Nationality Act

On September 1, 2017, the U.S. Department of State (“DOS”) updated its guidance on “willful misrepresentation” – DOS edited their officers’ guidance on people who take actions that are inconsistent with their temporary visa status within the United States. Willful misrepresentation is a basis to deny a visa under the Immigration & Nationality Act.

Inconsistent conduct that may lead a consular officer to determine that a person willfully misrepresented something can include:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized in the status they hold;
  • Marrying a U.S. citizen or LPR and taking up residence in the U.S., after entering on a status that prohibits immigrant intent; and
  • 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.

 

How Consular Officers Used to Look at Misrepresentation

Before September 1, 2017, DOS guidance was that a non-immigrant (a person temporarily in the United States with a visa) who engages in inconsistent conduct within 30 days of entry may be presumed to have misrepresented his or her intention in seeking a visa or entry. 

If the inconsistent conduct occurred more than 30 days but less than 60 days after entry, consular officers would not assume a person misrepresented himself, but if the facts gave rise to a “reasonable belief” that the person misrepresented his intent, he was supposed to be given an opportunity to present countervailing evidence. If he failed to present such evidence, the consular officer could find the person inadmissible to the United States (in other words, the officer could use this as a basis to deny the visa). 

 

How Consular Officers Will Evaluate Misrepresentation as of September 1, 2017

According to the new DOS guidance, a person who engages in inconsistent conduct within 90 days of his entry to the U.S. may be presumed to have willfully misrepresented his or her intention in seeking a visa or entry, and the person must be given the opportunity to present countervailing evidence. Failure to rebut the presumption of willful misrepresentation will most likely result in an inadmissibility finding. 

If the conduct occurs more than 90 days after entry, there is no presumption of misrepresentation, but if the facts give rise to reasonable belief that intent was misrepresented, a consular officer must request an Advisory Opinion from a separate office in order to make a finding of inadmissibility.

Additionally, if a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit”, they are directed to “bring the derogatory information to the attention of the Department for potential [visa] revocation.” 

The new guidance is effective as of September 1, 2017.

 

Does the New Rule Apply to U.S. Citizenship and Immigration Services (USCIS)?

The new rule is a Department of State rule. DOS operates the Embassies and Consulates around the United States. USCIS - the agency that approves immigrant petitions and even temporary visa petitions and other benefits applications – is part of the Department of Homeland Security. So this rule technically does not apply to USCIS, and the USCIS officers’ guidance has not been updated to be consistent with the new DOS rule.

Currently, the USCIS Policy Manual directs its officers not to use DOS guidance in denial decisions and states that the old 30/60 day rule is not a binding principle, but rather “an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support of finding of fraud or misrepresentation.” 

 

How Will this New DOS Rule Affect Me?

The biggest change in this rule is that DOS will now look at any actions taken within 90 days of a person’s entry to determine if a person misrepresented her intent when entering the United States. This gives DOS more leeway in denying visas based on misrepresentation.

If you are planning to apply for a temporary visa, and a consular officer finds that you misrepresented your intent when you entered the United States, your visa application will be denied. You will have the option to request a nonimmigrant visa waiver (sometimes called a 212(d)(3) waiver since it’s based on section 212(d)(3) of the Immigration and Nationality Act).

This waiver is reviewed by Customs and Border Protection, and they have the discretion to approve or deny it. It often takes months to get a decision on a nonimmigrant waiver. So at best, a misrepresentation finding will slow down the process of getting a temporary visa to the US, and at worst, it will stop you from getting a temporary visa.

If you are applying for an immigrant visa, which is a visa  that allows a person to come to the United States to become a permanent resident, a misrepresentation finding will mean that the Embassy will notify you that you must file an inadmissibility waiver for fraud or misrepresentation (often called an “I-601 waiver” after the form that is used to file the request).

These waivers also can take months to adjudicate, so a misrepresentation finding will cause delays in coming to the United States if the waiver is ultimately approved, but it may stop you from getting the immigrant visa altogether if the waiver is denied.

 

How Misrepresentation Comes Back to Bite You: An Interesting Example

We recently heard an example from a peer whose client had applied in 2005 for a visitor visa. On her visa application,she stated that she was married and named a man she knew as her spouse, because she did not think she would be given a visitor visa as a single woman with no spouse to return home to. Years later, she was in the United States and married a U.S. citizen.

The couple filed for her to get a green card, and at her interview, USCIS unearthed the information from her old visa application. Based on her statement that she was married, USCIS found her ineligible to get a green card not because she misrepresented her marital status, but because in their view,  she attempted to smuggle the man she listed on her visitor visa application because it may have helped him come to the United States with her. We found this reasoning to be faulty, but this example illustrates a few key points:

Misrepresentation can occur in many ways.  Remember that misrepresenting your intent when you were entering in the United States is not the only way to make a misrepresentation. A person can misrepresent herself on paper in an application, through her actions when she is in the United States, or verbally to a government official. The 90-day rule specifically addresses behavior within the 90 days after a person enters the United States, but nothing has changed regarding misrepresentations made in paperwork submitted to the U.S. government or in statements made to officers.

Different Government Agencies Can Work Together. This woman’s predicament also shows that USCIS and DOS are separate entities, but they can access each other’s information and use it as they see fit. Knowing that, misrepresentations should be discussed with your immigration attorney so that you can decide how to address them and argue your eligibility for immigration benefits.

You Can’t Avoid the Truth. Trying to hide or avoid disclosing actions you took can lead to problems with your case that may have nothing to do with misrepresentation, as was the case for this woman. The failure to disclose a previous action and address it head on (perhaps by arguing that even if she hadn’t been married when she completed her visa application, the woman still would have been eligible for a visitor visa) often results in even more complicated problems. In this case, USCIS identified a completely different ground for denying her application for a green card. However, the woman’s failure to disclose the previous misrepresentation she made on her visitor visa application could also have served as a new, separate basis for a misrepresentation finding against her. 

 

What Should I Do if I’m Getting Ready to Apply for a Visa?

In light of the new 90-day rule, foreign nationals need to be ready to talk about previous actions, and where possible, to argue that they are not inconsistent with the status they held when they entered the United States. Anyone getting ready to apply for a visa – either a nonimmigrant/temporary visa or an immigrant visa – should be prepared for the visa interview. Being prepared means having the information and documents you need, being truthful about your actions, and being able to explain previous actions and to address any issues that might delay or prevent your visa from being issued.

 

Immigration Lawyer in Houston

Being prepared for questions and even preparing a factual and legal analysis of the situation may help a consular officer to make a determination in your case. Preparing for a visa interview is something you can start doing whether you are currently in or out of the United States. If you will be applying for a visa and are concerned about explaining your actions while you were in the United States, talk to an experienced immigration attorney.

 

Schedule a consultation with the Law Office of Kathryn N. Karam

 

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