31 Oct Be aware of Preconceived Intent when applying for temporary visas
By Atty. Crispin Caday Lozano
When a person applies for a temporary visa to the United States, a person must actually have an intention to remain in the United States on a temporary basis and be limited by the rules of that visa. Similarly, when a person enters the United States on a particular temporary visa (or visa waiver), they must again represent that they truly only intend to remain in the United States on a temporary basis and will abide by the rules of the visa. Intending anything else is a material misrepresentation to Immigration Officers.
Beforehand, two of the main agencies that handle immigration matters – the Department of State & the Department of Homeland Security – have been in agreement on how to determine a person’s actual intent. The Department of State (DOS) is the agency that manages and controls the U.S. Embassies and Consulates abroad. They have their own rules and guidance as to how to proceed with immigration applications, just as the Department of Homeland Security (DHS) does for its own offices within the United States.
Without notice or warning, this decades old policy suddenly changed on September 1, 2017. The DOS just indicated that they have changed their interpretation of a misrepresentation as it relates to persons inside the United States. They have rejected the concept of a 30/60 day rule and have now instituted a flat 90 day rule.
The new 90-day rule now states that any “conduct inconsistent” with the status granted within 90 days of entry will result in an assumption that there was a willful misrepresentation when the person applied for a visa or entry to the United States. DOS officers are instructed that, if they find that someone in the United States has applied for permanent residence (green card) or otherwise committed some act inconsistent with their visa’s intent, they must bring this attention to the DOS for potential revocation of their visa.
How will the change in policy be implemented?
The new 90-day rule refers to any activity inconsistent with their status. This may include working without authorization, enrolling in courses without authorization (for example, a person on a visitor visa), marrying a U.S. Citizen/Permanent Resident and taking up residence with them, even potentially overstaying their visa, or doing anything else that would require or change of status.
If actions are taken within 90 days of the person’s entry that are inconsistent with their visa, it is up to the applicant to prove that they truly intended to follow the rules of their visa when they entered the United States or applied for their visa. Consular officers are given the directive to allow the person an opportunity to respond and prove otherwise.
If the activities occur outside of the new 90-day rule, there is no assumption. However, if it becomes clear that the intent was still invalid when entering the United States, then the Consular officer may still seek to revoke the visa.
Note: This is not a legal advice.
- For the month of October 2018, we received four approvals of N-400 and one approval for adjustment of status.
- On September 19, 2018, we received an approval of N-400 naturalization application and one Fiancée visa petition..
- For the month of August 2018, we received an approval of four Naturalization applications and five adjustment of status applications.
- On July 27, 2018, we received an approval for permanent resident for a client who was abused by her spouse under VAWA.
- For the months of May to June 2018, we have received four Naturalization applications approvals and two Adjustment of Status approvals
- On April 18, 2018, we received a grant of waiver from Immigration Court for a husband and wife client who made a misrepresentation of their marital status but has no criminal records, has long residence and strong family ties in the U.S.
- On April 12, 2018, the Immigration Judge in San Francisco approved a waiver of misrepresentation in applying for a visa for our client who has been in the U.S. for 26 years, no criminal record and strong family ties in the U.S.
- On April 3, 2018, we received an approval from USCIS for a U visa for a client who was a victim of crime.
- For the month ending March 31, 2018, we received approvals for four naturalization applications.
- For the week ending March 31, 2018, we received approvals of six Adjustment of Status, two Application to Remove Condition on Residence and two Renewal of Green Card approvals.
- On March 9, 2018, we received an approval from USCIS for adjustment of status for a client who was abused by her spouse. The I-601 waiver was approved based on extreme hardship.
- On February 15, 2018, we received a grant from Immigration Judge for a waiver of misrepresentation for a client who has been in the U.S. for long period of time.
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. His contact phone is 1-877-456-9266, email: firstname.lastname@example.org