Breaking down the New “90-Day” Rule Regarding Inconsistent Conduct After Entry that Suggests a Misrepresentation

A Replacement of the 30/60 Day Rule

The new rule throws out the 30/60 day distinction and replaces it with a much broader 90 day rule. Now, a consular officer can presume fraud if inconsistent conduct occurs within 90 days. Examples of inconsistent conduct includes marrying a U.S. citizen or applying for F-1 status.  

This new rule raises challenging questions for foreign nationals who have engaged in inconsistent conduct within 90 days of entry. In the common scenario where a marriage occurs and a subsequent application for adjustment of status is filed in the U.S., the first question is to what extent will USCIS (United States Citizenship and Immigration Services) adopt or follow this new consular rule? Remember, in the U.S., USCIS is the agency decision maker and is not bound by the Department of State rules in the FAM. Historically, USCIS may consider FAM rules in their own decision making, but they will not strictly adopt a FAM rule. USCIS has their own rules and operating procedures which currently do not include a 90 day or similar rule regarding misrepresentations.  
It is also important to understand that a foreign national has more rights and recourse in the U.S. than when applying for a visa at a consulate abroad; and that the 90-day rule is really just the Department of State’s interpretation of how to uphold the law. If their interpretation in a particular case conflicts with the actual law, their interpretation or policy can be challenged. Consequently, whether an inconsistent act occurs 10 days or 80 days after entry, a foreign national should be afforded the right to prove that their intent understandably changed after entry, and they never affirmatively mispresented their intent before or upon entry.  

The “ESTA” Question

Another question is how does the new 90-day rule change the risk analysis for “ESTA” entrants who are pondering whether to marry their U.S. citizen fiancée after they come to the U.S.? Because ESTA entrants are only allowed entry for 90 days, they are faced with 3 tough options: 

1.  Leave the United States after marriage, and conduct the process from abroad, which will likely entail a long separation from their spouse. [As an aside: It is terribly frustrating that USCIS and DOS does not acknowledge how the extremely long consular processing time for spouses creates this whole problem. There should simply be a faster non-immigrant visa for spouses of U.S. citizens (like a stream-lined K-1 but without a USCIS petition) and this problem would be largely solved. Or, a strong policy that allows foreign nationals to continue to enter as visitors (if they have a B visa or ESTA) after the I-130 is filed and until the consular process concludes.] 

1. File for adjustment of status before 90 days and be prepared to rebut a potential presumption of fraud.  

1. Get married and file for adjustment of status after 90 days. The downside to this approach is that the foreign national will accrue “unlawful presence” in the U.S. which means they likely will never be able to use the ESTA program again. Hopefully, they will never need ESTA again, but what if the couple moves overseas and the foreign national abandons his/her green card or the couple separates before completing the entire process? Additionally, if a foreign national overstays their ESTA period, they are vulnerable to “expedited deportation” in the event that they are picked up by ICE before filing for adjustment of status or if their application is denied, rather than having the right to challenge the decision in immigration court.  

The bottom line is that the new rule creates new risks for foreign nationals who engage in inconsistent conduct within 90 days of their initial entry into the U.S. However, it is still too early to gauge how much this new FAM rule effects USCIS decision making.  

If you or a friend or family member has engaged in inconsistent conduct within 90 days of entry, and now are seeking to adjust status, change status or obtain a visa abroad, we strongly advise you to seek the advice of an experienced immigration law.    

The full text of the new rule is below:

(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. 

(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).)