31 Dec Warning when changing status on Preconceived Intent
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 November 2019, we received approvals of one naturalization application, one renewal of green card, one Petition to remove condition on residence and one adjustment of status.
- For the month of October 2019, we received five naturalization application approvals and two renewal of green card and one DACA approval.
- For the month of September 2019, we received approval of two naturalization applications, one adjustment of status and one application to remove condition on residence.
- For the month of August, 2019, we received approval from Immigration Court for a waiver of misrepresentation for a client who has committed marriage fraud. We also received approval from USCIS of two naturalization applications and two fiancé visa petition.
- For the month of July 2019, we received approvals of three N-400 application for Naturalization, one I-751 Petition to remove condition of residence with interview and two I-90 renewal of green card.
- For June 2019, we received approvals of four adjustment of status, six naturalization applications and two certificate of citizenship applications, and one Removal of condition on resident.
- On May 6, 2019, we received approvals of three adjustment of status applications and two Naturalization applications.
- On April 24, 2019, we received approval from USCIS for three naturalization applications and one adjustment of status.
- On March 29, 2019, we received an approval of adjustment of status for a client whose petitioner and primary beneficiary has died under INA 204(l)
- On March 28, 2019, we received an approval of renewal of green card for a client who was in the Philippines under medical treatment for one and a half years.
- From March 4 to 26, 2019, we received six adjustment of status approvals.
- For the month of February, 2019, we received tow approvals of renewal of green card and one approval of removal of condition on residence.
- On January 16, 2019, we received an approval of naturalization for a client who received a waiver of misrepresentation in Immigration Court.
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. He practices immigration law, bankruptcy and personal injury law since June 1999. His contact phone is 1-877-456-9266, email: info@CCLlaw.net