On September 1, 2017, the U.S. Department of State (“DOS”) updated 9 FAM 302.9-4(B)(3) to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”
The Field Adjudicators Manual (“FAM”) now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” which states:
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.
Inconsistent Conduct.
For purposes of applying this new 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes:
Engaging in unauthorized employment;
Enrolling in a course of academic study, if such study is not authorized (e.g. B Visitor status);
Marrying a U.S. citizen or LPR and taking up residence in the U.S., after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
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.
