A directive from U.S. Department of State (DOS) leadership outlines new, more stringent grounds for denying foreign aliens entry to the U.S. or for expelling them after they’ve already been admitted.

In a cable sent to American diplomatic posts, Secretary of State Rex Tillerson instructed immigration and consular officers to ensure that noncitizens who have obtained a visa to the U.S. adhere to their stated plans for at least three months following admission. If aliens do something they failed to disclose in their visa applications or interviews, then officers should presume they intentionally lied. According to Secretary Tillerson, such actions could include marrying a U.S. citizen, obtaining employment, or enrolling in school.

The secretary’s cable refers to recent changes made to the Foreign Affairs Manual (FAM) for DOS personnel. This new “90-day rule” is memorialized in 9 FAM 302.9 (U), which cites “conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status” and highlights such discretions as engaging in unauthorized employment or study, or demonstrating an intent to reside in the U.S. while in a status—such as B (visitor) or F (student) status—that does not allow dual intent. 

Prior policy was referred to as the 30/60-day rule. According to this rule, changes in plans occurring within the first month of an alien’s entry to the U.S.—not the first three months—were considered “willful misrepresentation,” or evidence of the intent to commit visa fraud. Conduct occurring between 30 and 60 days of entry gave rise to a “reasonable belief” of willful misrepresentation that could be rebutted by the alien in question. And no presumption of deceit applied to conduct after 60 days. Now, however, all conduct within the first 90 days is presumed willful.

In general, a finding of willful misrepresentation makes the processes of renewing a visa or applying for a change of status difficult, if not impossible. In addition, aliens who violate the terms of their status while still in the U.S. are subject to deportation. 

The tightened rules do not apply to foreign nationals from one of the 38 countries whose citizens do not require a visa to enter the U.S. as a visitor. Countries in the Visa Waiver Program (VWP), which allows for up to 90 days of stay in the United States without a visa, include Germany, Japan, New Zealand, and South Korea.

Our Thoughts

This latest executive branch action amounts to a continued implementation of President Trump’s “extreme vetting” of foreign nationals seeking entry to the country, and points to the seriousness with which his administration intends to restrict both illegal and legal immigration to the U.S.

Earlier this year, in a published memorandum, President Trump directed top cabinet officials to more rigorously “enforce laws relating to … grounds of inadmissibility and subsequent compliance.” To this end, in addition to the 90-day rule, DOS has already instituted a more intrusive questionnaire as part of the visa application process for certain aliens, among other, increasingly stringent policies. 

On the same day he released that memo, March 6, the president also issued his revised executive order on immigration, the so-called travel ban.

Meanwhile, domestically, reports of aggressive immigration enforcement—including an uptick in raids and deportations—culminated earlier this month in the rescission of the Deferred Action for Childhood Arrivals, or DACA, program. And later this fall, the travel ban will once again be front and center, as the Supreme Court is slated to hear oral argument on the executive order.

Our experienced immigration attorneys will continue to monitor the government’s exercise of changes in immigration policy. Generally speaking, aliens should expect increased scrutiny of their nonimmigrant visa applications and subsequent maintenance of nonimmigrant status. If you are in the process of applying for or renewing certain nonimmigrant visas, particularly B and F visas, we invite you to contact our firm today and schedule a free initial consultation. 

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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017

At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.

Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).

He will use his experience and expertise to deliver the highest quality of service to our clients.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past twenty-one years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

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(09/19/2017)