State Department scraps “30/60 day rule” in favor of the new “90 day rule” for fraudulent intent

State Department scraps “30/60 day rule” in favor of the new “90 day rule” for fraudulent intent

One of the most technical rules on visa fraud focuses on a person misrepresenting his or her intent when applying for certain nonimmigrant visas or when entering the United States.

If a person is applying for a visitor’s visa, they are effectively representing to the consul their intent in coming to the United States is solely to visit, and then return to their home country.  Similarly, if a person already has a visitor’s visa, and is seeking to enter the United States as a visitor, the person is also effectively representing to the Customs and Border Protection (CBP) officer at the airport their intent is solely to visit.

If the person thereafter engages in conduct inconsistent with visiting (such as working, marrying a U.S. citizen and being petitioned for a green card, etc.), it could be considered fraud or misrepresentation.  After all, the person told the consul or the CBP officer that all they were intending was to visit, but then they immediately engaged in activities inconsistent with that intent.

For over 25 years, the U.S. government has relied on the “30/60 day rule,” in determining whether a person misrepresented his or her intent in either applying for a visa or entering the United States.  Under that rule, if an alien violated his or her nonimmigrant status within 30 days of entry (such as engaging in unauthorized employment, applying for adjustment of status, etc.), it could be presumed the person misrepresented his or her intent.  If such conduct occurred after 30 days but within 60 days of entry into the U.S., there would be “no presumption of misrepresentation,” but it could create the suspicion of misrepresentation, and the person could be questioned about the suspected misrepresentation.  If the conduct occurred more than 60 days after admission to the U.S., there would be no findings of any misrepresentation.

Recently, the State Department scrapped or threw out the 30/60 day rule, and has now implemented the 90 day rule.  Under this new rule, if a person “violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry,” it could be presumed that the person misrepresented his or her intentions, and they could be charged with fraud.  In other words, if a person enters the U.S. on a visitor’s visa and starts working within 90 days of entry, they would effectively be committing fraud.  Similarly, if a visitor or student marries a U.S. citizen or green card holder within 90 days of entry into the U.S., and takes up residence in the U.S., that could also be considered fraud.  Under the old rule, it would be considered fraud only if this activity occurred within 30 days of entry.  Now, it’s fraud if it occurs within 90 days of entry.

I know that many people entered the U.S. as either visitors or students and violated their visa by either working, marrying a U.S. citizen, not going to school on a student visa, etc.  These people now need to be aware this conduct could possibly give rise to a finding of fraud.  If you believe this may apply to you, I would definitely suggest you seek the advice of an attorney who can evaluate your situation and advise on the best course of action.

Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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