FAM Change Scraps 30/60-Day Rule (CT:VISA-60, Oct. 17, 2017)

New 9 FAM 302.9-4(B)(3)  (U) Interpretation of the Term Misrepresentation [as of Oct. 17, 2017]

... 

"g. (U) Activities that Indicate Violation of Status or Conduct Inconsistent with Status

(1)  (U) In General:

(a)  (U) In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.  Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants and been admitted to the United States, either:

(i)     (U) Apply for adjustment of status to lawful permanent resident; or

(ii)    (U) Fail to maintain their nonimmigrant status (for example, by engaging in unauthorized study or employment).

(b)  (U) Applications for adjustment or change of status in the United States are adjudicated by U.S. Citizenship and Immigration Services (USCIS), other than in those cases where the application is made before an Immigration Judge.  If you become aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit, you may bring the derogatory information to the attention of the Department for potential revocation.  See 9 FAM 403.11-5.  If you become aware of derogatory information indicating that an alien in the United States without a valid visa but who is not a Lawful Permanent Resident may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit, then you may enter a P6C1 lookout in CLASS with the appropriate information.  See 9 FAM 403.10-3(C)(1).  Do not request an advisory opinion from the Advisory Opinions Division (CA/VO/L/A) in these cases, because it would not be binding on USCIS.

(c)  (U) With respect to the second category referred to above in subparagraph g(1)(a)(ii), nonimmigrant visa holders who fail to maintain their nonimmigrant status, the fact that an alien's subsequent actions are inconsistent with those stated at the time of visa application or admission or in a filing for an immigrant benefit does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry.  You should consider carefully the precise circumstances of the change in activities when determining whether the applicant made a knowing and willful misrepresentation.  To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence.

(2)  (U) Inconsistent Conduct Within 90 Days of Entry:

(a)  (U) However, if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, 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.  To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal.  See 9 FAM 304.3-2.

(b)  (U) For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

(i)     (U) Engaging in unauthorized employment;

(ii      (U) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)    (U) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv)    (U) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

(3)  (U) After 90 Days:  If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States, no presumption of willful misrepresentation arises.  However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.  (See 9 FAM 302.9-4(C)(2)).  

h. (U) Evidence of Violation of Status:  

(1)  (U) To find an alien inadmissible under INA 212(a)(6)(C)(i) based on a violation of status, there must be evidence that, at the time of the visa application, admission into the United States or in a filing for an immigration benefit (e.g., an application to change or extend a stay in nonimmigrant status), the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was consistent with the intended nonimmigrant classification.  Ordinarily, such evidence would be in the form of an admission, from information taken from the alien's nonimmigrant visa (NIV) application, or a report by an immigration officer that the alien made such a statement (e.g., as would be found on the DHS Form I-275, Withdrawal of Application/Consular Notification).

(2)  (U) The burden of proof falls on the alien to establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.  You must give the alien the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it. In the absence of any further offering of proof by the alien to rebut the presumption of willful misrepresentation based on his/her activity within 90 days after entry to the United States, a finding of ineligibility will most likely result

(a)  (U) If you are satisfied that the presumption is overcome, and the alien is otherwise eligible, process the case to conclusion.  

(b)  Unavailable

(i)     Unavailable

(ii)    Unavailable"

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Compare with CT:VISA-272; 12-20-2016:

"g. (U) Applying the 30/60 Day Rule:

(1) (U) In General:

(a) (U) In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to the consular officers concerning their intentions at the time of visa application or to immigration officers when applying for admission. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants, either:

(i) (U) Apply for adjustment of status to permanent resident; or

(ii) (U) Fail to maintain their nonimmigrant status (for example, by engaging in employment without authorization by DHS).

(b) (U) To address this problem, the Department developed the 30/60-day rule. This rule is intended to facilitate adjudication of these types of cases consistent with the statutory mandates.

(c) (U) Aliens who apply for adjustment or change of status pursuant to the INA are within the jurisdiction of the United States Citizenship and Immigration Services (USCIS) unless the application is abandoned upon the departure of the alien from the United States. If you become aware of derogatory information indicating that an alien who has applied to USCIS to adjust to immigrant status or change nonimmigrant status in the United States may have misrepresented his or her intentions to you at the time of visa application or to the immigration officer at the port of entry, you should bring the derogatory information to the attention of the appropriate USCIS office that has jurisdiction over the adjustment or change of status application. Do not request an advisory opinion from the Advisory Opinions Division (CA/VO/L/A) in these cases, because it would not be binding on USCIS.

(d) (U) With respect to the second category referred to above, nonimmigrant visa holders who fail to maintain their nonimmigrant status, the fact that an alien's subsequent actions are other than as stated at the time of visa application or admission does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry. You should recognize that the precise circumstances under which the change in activities have an important bearing on whether a knowing and willful misrepresentation was made. The existence of a misrepresentation must therefore be clearly and factually established by direct or circumstantial evidence sufficient to meet the "reason to believe standard. Although indeed more flexible than the judicial "beyond reasonable doubt standard demanded for a conviction in court, a "reason to believe standard requires that a probability exists, supported by evidence which goes beyond mere suspicion.

(2) (U) Applying 30/60 Day Rule When Alien Violates Status: You should apply the 30/60-day rule if an alien states on his or her application for a nonimmigrant visa, or informs an immigration officer at the port of entry (POE), that the purpose of his or her visit is consistent with that nonimmigrant status and then violates such status by:

(a) (U) Actively seeking unauthorized employment and, subsequently, becomes engaged in such employment;

(b) (U) Enrolling in a full course of academic study without the benefit of the appropriate change of status;

(c) (U) Marrying and taking up permanent residence; or

(d) (U) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presume that the applicant's representations about engaging in status-compliant activity were misrepresentations of his or her intention in seeking a visa or entry. For a finding of an inadmissibility for inconsistent conduct within 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or her nonimmigrant status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4(C)(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrant status more than 60 days after admission into the United States, the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)(C)(i) inadmissibility.

h. (U) Evidence of Violation of Status:

(1) (U) To find an alien inadmissible under INA 212(a)(6)(C)(i), there must be evidence that, at the time of the visa application or entry into the United States, the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit to the United States was other than to work or remain indefinitely. Ordinarily, such evidence would be in the form of an admission, from information taken from the alien's nonimmigrant visa (NIV) application, or a report by an immigration officer that the alien made such a statement (e.g., as would be found on the DHS Form I-275, Withdrawal of Application/Consular Notification).

(U) NOTE: For all findings of inadmissibility under the 30/60-day guidelines described in section g, above, you must request an AO from CA/VO/L/A.

(2) (U) The burden of proof falls on the alien to establish that his or her true intent at the time of the suspected misrepresentation was permissible in his or her nonimmigrant status. In the absence of any further offering of proof by the alien to rebut the presumption, a finding of ineligibility will result. You must give the alien the opportunity to rebut the presumption by presentation of evidence to overcome it.

(a) (U) If you are satisfied that the presumption is overcome, and the alien is otherwise eligible, process the case to conclusion.

(b) Unavailable"