The US Department of State (“DoS”) has updated its Foreign Affairs Manual, which serves as guidance to consular officers adjudicating visa applications abroad and is widely relied upon by US Citizenship and Immigration Services for US-based adjudications as well. The change impacts the so-called “30/60-day rule,” eliminating this and replacing it with a new, “90-day rule.” The Section of the Foreign Affairs Manual (“FAM”) impacted is 9 FAM 302.9-4(B)(3).
The earlier 30/60 rule dealt with the question of what happens when a foreign national entering on a nonimmigrant visa did something soon after entering the US that appeared inconsistent with what was said to consular officers when applying for the visa stamp, or interviewing Customs and Border Protection (“CBP”) officers upon entry. Most often this involved applying for or entering in a nonimmigrant status which specifically required “nonimmigrant intent” (the intent to come to the US for a limited term, for a specific purpose, and then return to an relinquished home abroad – the B-1/B-2 Visitor Visa, the F-1 Student Visa, and visitor entry under the Visa Waiver Program are the most common examples).
Under the original 30/60-day rule, there was a legal presumption of misrepresentation if something inconsistent was done within 30 days of entry – for instance, entering as a visitor and then marrying a US citizen or accepting a job and applying to change to some type of visa permitting employment. The legal presumption meant that the foreign national was assumed to have committed fraud, though in theory the foreign national could prove otherwise, the burden of proving this was often difficult to overcome.
Were the foreign national to do something inconsistent with the manner of entry after 30 days but before 60, there was no actual presumption of misrepresentation. However, the prior guidance was worded such that an officer “must give the alien the opportunity to present countervailing evidence” – it was clearly still the foreign national’s responsibility to prove that there was no inconsistency, or that there was some change in circumstances, and that the intent at the time of application for the visa and of application for admission to the US was consistent with the immigration status in which the person requested entry. So, as a practical matter, it was unwise to take any action inconsistent with the visa on which a foreign national entered before 60 days had elapsed from entry.
The new 90-day rule does away with the fine distinction between 30 and 60 days and imposes a blanket 90-day rule – if some action inconsistent with the manner of entry is taken within 90 days of entry, the presumption of misrepresentation applies to that foreign national.
The biggest impact of this change will be on individuals entering under the Visa Waiver program (what many people simply call “ESTA” after the online form required to use the program). Visa Waiver allows for a 90-day period of entry with no possibility of extension or change of status with the narrow exception of Adjustment of Status based upon marriage to a US citizen.
A planned visit to a romantic partner often turns to an intent to marry and remain in the US as time runs out on the visa and a couple faces the prospect of separating. Before, a Visa Waiver entrant in the final month of a visit could marry and file for Adjustment of Status based upon the marriage – without running afoul of the 30/60-day rule or overstaying the 90 days they were permitted to be in the US.
Now, a visa waiver entrant who ultimately decides to marry has the choice or marrying before 90 days and violating the new rule, or overstaying the 90-day visa waiver period of admission and filing while out of status – possible, but riskier.
As with so many recent policy changes, much remains unclear – particularly whether this will apply retroactively to those who might have done something inconsistent with the manner of entry before the September 1, 2017 effective date of the new rule.