When applying for a visa or otherwise seeking admission to the United States, an applicant must demonstrate that he or she is eligible for the requested visa classification and that no ground of inadmissibility applies.  One potential ground of inadmissibility is “fraud or misrepresentation” in connection with application for a visa or other immigration benefit.

The U.S. Department of State recently amended the Foreign Affairs Manual, which provides guidance to consular officers adjudicating applications for immigrant and nonimmigrant visas.   A change was made to the basic rule for determining whether an applicant may be presumed to have committed fraud or misrepresentation in connection with an application for a visa or other immigration benefit.

Impact of the Change in Foreign Affairs Manual

Under the revised Foreign Affairs Manual, consular officers will apply a presumption of fraud or willful misrepresentation in cases wherein an applicant violates his or her lawful nonimmigrant status, or engages in conduct inconsistent with such status, within 90 days of admission to the United States.  Examples might include the following, non-exhaustive list of scenarios:

• B-1/B-2 visitors who request a change of status to F-1 student status within 90 days after admission
• TN applicants who apply for permanent residency within 90 days after admission
• E-3 applicants who apply for permanent residency within 90 days after admission

The previous rule applied a presumption only for such conduct within 30 days of admission.  Conduct between 30 and 60 days under the previous rule might have been subject to additional scrutiny if the facts gave rise to a reasonable belief that the individual intended such conduct at the time of original admission.

Adjudications by U.S. Citizenship & Immigration Services (CIS)

The Foreign Affairs Manual applies to consular officers at U.S. Embassies and Consulates when adjudicating applications for nonimmigrant or immigrant visas.  This means that applicants who apply for future visas are likely to have their conduct following prior admissions to the United States evaluated to determine whether conduct inconsistent with visa classification occurred, and if so, when.  Any such conduct within 90 days after admission would fall under the “presumption” of willful misrepresentation, while such conduct outside the 90 days might trigger additional inquiries or even a request for an Advisory Opinion prior to visa issuance.

Currently U.S. Citizenship & Immigration Services (CIS) has not issued parallel or similar guidance, and it is unclear whether CIS adjudicators will apply a similar presumption when adjudicating applications for a change or extension of status in the United States.  CIS officers have begun to focus on details and technicalities not previously a part of routine adjudication practice, so applicants should not be surprised if the individual’s intent upon admission and conduct in the months following admission are considered in connection with future petitions and applications.

Case-by-Case Consultations Recommended

The nature of any determination of “misrepresentation” is necessarily case-specific and fact-specific.  Applicants who are uncertain whether their proposed activities would violate their original admission, or who have changed their plans following admission to the United States should contact their Foster immigration counsel for a consultation on the potential consequences of any new, proposed activity.

As always, Foster will continue to monitor changes in U.S. Department of State and U.S. Citizenship & Immigration Services adjudications guidance and practice and will provide additional details in future Immigration Updates© and on our firm’s website at www.fosterglobal.com.