This month, the Department of State (DOS) changed the agency’s guidance concerning the presumption of willful misrepresentation. More specifically, the guidance applies to individuals who engage in certain behavior within 90 days of entering the US as a nonimmigrant.
The guidance, in the Foreign Affairs Manual, states: “If an alien violates or engages in [certain] conduct inconsistent with his or her nonimmigrant status within 90 days of entry … , 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.”
The guidance is a modification and not completely new. Previously, DOS guidance was that the consular officers may “presume” that a nonimmigrant who violated his nonimmigrant status within 30 days of his entry into the US misrepresented his intentions in his visa interview.
Now, consular officers may presume that if the nonimmigrant violated his status within 90 days of entry, he made a willful misrepresentation.
A wide variety of actions could equate to a violation of nonimmigrant status. These actions include, among other things, marrying a US citizen or permanent resident, or working with employment authorization.
If the government presumes the nonimmigrant made a willful misrepresentation, the nonimmigrant must prove his intent at the time of application for the visa and entry was consistent with his nonimmigrant status. If the nonimmigrant does not do so, an immigration officer will find the nonimmigrant inadmissible under INA § 212(a)(6)(C), which provides, “(i)…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.”
Being inadmissible makes a noncitizen unable to enter the US and unable to get certain other immigration benefits. While the government may waive this inadmissibility, it may do so only under certain circumstances. The waiver for an individual who wants to be admitted as an immigrant (i.e., for someone who wants to get a Green Card/to become a permanent resident) requires, among other things, that the individual have a parent or spouse who is an American citizen or permanent resident to and who would suffer extreme hardship if the individual is refused admission.
Many nonimmigrants should take careful note of this change in guidance. This is a change of guidance that underscores the point that just because a nonimmigrant that immigration law is constantly changing, and at one’s own risk is the only was one should take confidence from the story of another person who was able to do such and such in the past.
This change in guidance comes pursuant to Donald Trump’s memorandum, which tells the Secretary of State (and Attorney General and Secretary of the Department of Homeland Security) to “rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.”