A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, September 23, 2017

U.S. Visa Holders Presumed Lying If They Engage in Disallowed Activities Within 90 Days of Entry

Foreign visitors need to watch out for they do within the first 90 days of their entry, or else, their visas could be cancelled and they might not be able to return to the U.S. again. 

New 90-Day Policy
Under the U.S. immigration laws, a person who has made misrepresentations to an American official is not allowed to enter the country.   Under Section 212(a)(6)(C)(i) if the Immigration Act, a foreigner who uses fraud or willful misrepresentation to apply for a visa, gain admission into the U.S., or to obtain other immigration benefit is inadmissible. Under a new State Department policy, it is easier now for a visa applicant to be found inadmissible based on false statements made during the visa application process. 

Specifically, the policy requires U.S. consular officers to presume that visa holders made material misrepresentations (false statements) in their visa applications, if within 90 days of their entry, their actions or behavior are inconsistent with, or in violation of, the visitors' visa status.  

When Harry Met Sally
For example, Harry applied for a B-2 visitor visa to enter the U.S. to visit his friends. However, one month after his entry, while visiting the Empire State Building in NY, he met Sally and fell madly in love with her. Unable to be separated from Sally, Harry proposed to her. After their marriage, Harry submitted applications to apply for a U.S. green card based his marriage to Sally, a U.S. citizen.  If the applications were filed within three months of his entry to the U.S., then Harry will be presumed to have made false statements when he applied for his B-2 visa.

Other examples of "bad" behavior that violates a foreigner's visa status include: working without authorization; enrolling in an unauthorized course of academic study; and engaging in activities that are not allowed by the visa status.
In general, a foreigner's immigration history, including any violations at any time, can be considered by consular and immigration officers when reviewing discretionary applications such as nonimmigrant visa applications and applications for green cards.

The new policy issued by the new State Department Secretary is another example of further tightening of the U.S. immigration policy under the Trump Administration.  Previously, nonimmigrant visa holders' behavior was scrutinized mostly during the first 30 or 60 days of entry. 

"I am innocent!"
Even under the new policy, applicants are allowed to have an opportunity to present evidence to rebut any presumption of fraud.  Take the above case as an example, if Harry can provide convincing evidence to show that he did not know Sally beforehand, their meeting was accidental, and their relationship blossomed explosively during a short time, then chances are good that he can overcome of presumption of fraud. 

The policy is imposed on all State Department employees and overseas consular officers.  USCIS has not yet formally adopted this policy.  However, individual immigration officers anecdotally have focused more on visa holders' activities after their initial admission, when reviewing applications to change or adjust status within the U.S.   Therefore, foreign visitors should be extremely cautious about their actions after arrival.  Since the new policy just came down recently without advance notice, foreigners who think they might have taken questionable actions should proceed even more cautiously to avoid visa cancellation and other negative consequences.  

Honesty is the best policy
On the flip side, foreigners should also be careful when applying for an America visa  It is important to be as accurate and complete as possible in their visa applications. Avoid making false statements or providing untruthful information about their biographic information such as marital status.  Be sure to disclose any family members that are living in the U.S. Review all information carefully before submitting the application. When in doubt, seek help from professional immigration attorneys.

Finally, although the new policy focuses on behavior within the first 90 days, foreign visitors should not assume that it is okay to engage in disallowed activities after 90 days of their entry. 

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