Copyright © 2018. Nathalie Gomez - San Diego, California -nathalie@theimmigrationguru.com

How do the Changes to the Foreign Affairs Manual Impact You?

September 6, 2018

 

During August of 2017, the Department of State revised the Foreign Affairs Manual (FAM) to adhere to the policies set out in the President’s executive order “Buy American and Hire American.” The Foreign Affairs Manual is an authoritative source published by the Department of State providing procedural and instructional guidance to U.S. Consular officers who are responsible for administering and adjudicating immigrant and non-immigrant visas abroad.

 

The Executive Order “Buy American and Hire American,” signed by the President on April 18, 2017, calls upon the Department of State to, “to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)),” as well as proposing new rules and new guidance, “to supersede or revise previous rules and guidance ……to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

 

In accordance with the executive order, the Department of State has made several revisions to the manual which directly affect both non-immigrants and immigrants alike.

 

Presumption of Fraud

 

One of the important changes to the revised Foreign Affairs Manual is how the government will identify misrepresentation in applications requesting an immigration benefit. The revised FAM has now expanded the definition of misrepresentation, in terms of the types of activities that may support a presumption of fraud.

 

The following activities have been listed in the FAM as activities which may support either a presumption of fraud or material misrepresentation:

 

  • Engaging in unauthorized employment

  • Enrolling in a course of academic study where the study is not authorized by the non-immigrant’s visa classification

  • Marriage to a U.S. Citizen or lawful permanent resident by a nonimmigrant in B or F status, or any other status prohibiting immigrant intent

  • Engaging in 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

 

Abandonment of the 30/60 Day Rule

 

Prior to the revision to the FAM, USCIS imposed a presumption of fraud on foreign nationals who entered the United States using a non-immigrant visa type and subsequently married a U.S. Citizen or LPR within 30 days of their entry to the United States. The presumption of fraud applied in these types of cases because a non-immigrant visa type is granted only for individuals who seek to remain in the United States temporarily for a purpose consistent with the non-immigrant visa classification. A non-immigrant who subsequently entered into marriage to a U.S. Citizen or LPR within 30 days of their entry thus would be presumed to have misrepresented his true intentions in coming to the United States. Previously the FAM allowed foreign nationals to rebut a presumption of fraud if the marriage and application for adjustment of status occurred more than 30 days, but less than 60 days, after the foreign national’s entry to the United States.

 

Marrying and Taking Up Residence as a Non-Immigrant

 

The revised FAM does away with the 30/60-day rule. Beginning September 1, 2017, a presumption of fraud exists where a foreign national has married a U.S. Citizen or LPR and has applied for adjustment of status within 90-days of their entry to the United States”

 

 “If the beneficiary violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, the officer may presume that the applicant’s representations about engaging in only status complaint-activity were willful misrepresentations of his or her intention in seeking a visa or entry.”

 

“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.”

 

In other words, if you are a foreign national who entered the U.S. on a non-immigrant visa type, and you enter into marriage with a U.S. Citizen within 90 days of your entry to the United States, the government will presume that you have committed fraud, and willfully misrepresented your true intention in coming to the United States. Individuals in this situation may be placed in removal proceedings, and/or be barred from the United States.

 

If a foreign national has misrepresented his or her true intentions in order to gain admission to the United States on a fraudulent basis, either at the time of filing the visa application, at a DHS port of entry, or when filing for an immigration benefit with USCIS, the foreign national will be presumed to have committed fraud.

 

If a foreign national engages in a prohibited activity while on a non-immigrant visa type (see list above) 90 days after entering the United States, no presumption of willful misrepresentation will apply. A presumption of willful misrepresentation will apply if a foreign national engages in a prohibited activity within 90 days of entry.

 

In the language of the FAM: 

  1. 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. (no change)

(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)).

  1. (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 inconsistent 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.

 

If you entered the United States on a non-immigrant visa classification, and you subsequently take up residence in the United States and marry a U.S. Citizen or LPR within 90 days of your entry to the United States, a presumption of fraud will apply to you under the revised FAM rules. Please contact an attorney before filing for adjustment of status if this situation applies to you.