LEGAL UPDATE: 02 Oct 2017


New Definition of “Misrepresentation” under US Immigration Law

As reported by the American Immigration Lawyers Association (AILA), on September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which provides:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.
Specifically, 9 FAM 302.9-4(B)(3)(g) and (h) have been substantially revised, the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.

The following actions are sufficient to trigger the application of the rule:

• Engaging in unauthorized employment;
• Enrolling in a full course of academic study without authorization and/or the appropriate change of status;
• A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States.
• Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.

Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred within 30 days of entry.

For more information contact our office to speak with one of our attorneys.

This posting does not constitute direct legal advice and is for informational purposes only.