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Immigration Quicksand: A finding of Willful Misrepresentation for Some Non-Immigrants Who Decide to Immigrate Too Quickly

Many immigrants enter the United States as non-immigrants – as tourists on a B2 visa, through the Visa Waiver Program, as students, etc. Often, those “non-immigrants” will meet an U.S. citizen, fall in love, and decide to get married. Sometimes the non-immigrant has a long history with their new spouse, but didn’t decide to get married until shortly after entering the country on their non-immigrant visa. In other cases, a student may move to the U.S. for the purpose of continuing their education but due to changes in their financial situation, they may decide to look for employment instead, thereby violating the terms of their student visa.

U.S. immigration law draws a distinction between “non-immigrant intent,” which is the intention to remain in the U.S. temporarily before returning to the foreigner’s permanent residence, and “immigrant intent,” or the intention to reside in the U.S. permanently.  Many non-immigrant visa are only provided to those who swear to or can demonstrate non-immigrant intent.

Previously, the government applied what is known as a “30/60 day rule”: when a non-immigrant entered the country with a non-immigrant visa and within 30 days took steps that were not in line with their non-immigrant status, a presumption was drawn that the non-immigrant misrepresented their intention upon entry.  If, however, the steps were taken between 30 and 60 days after arrival, there was no such presumption.

If, for example, an exchange student came to the U.S. for the purpose of spending a semester at a U.S. university, but married a U.S. citizen just two weeks after arrival and then applied for lawful permanent residency (a “green card”), the government would presume that the student’s true reason for entering the country was to get married and adjust status.  Applying the 30/60 day rule, the government might determine that thee student had made a material misrepresentation by entering the country for the stated purpose of studying but with the actual purpose of applying for lawful permanent residency.  The government would then ask the student to either rebut that presumption with evidence to the contrary or they would require a waiver of the student’s misrepresentation, assuming they were eligible for such waiver.

Unfortunately, on September 1, 2017, the Department of Status (DOS) updated it’s manual to eliminate the “30-60 day rule.”  Instead, the Department of State is now applying a “90 day rule.”  The Department’s manual now states that if a non-immigrant “violate or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry” the Department of State may presume that the person’s previous representations regarding their nonimmigrant intent, either at the time of application or at the time of entry, were willful misrepresentations.  (See 9 FAM 302.9-4(B)(3)).  A finding of willful misrepresentation can result in the revocation of a visa, or in a finding of inadmissibility to the United States as an immigrant.  In some circumstances, such a finding could result in lifetime inadmissibility to the United States.

The good news is that the United States Citizenship & Immigration Services (DOS) Policy Manual has not yet been updated to reflect this change. Additionally, two decades-old cases issued by the Board of Immigration Appeals state that even a finding of “preconceived intent” to immigrant is, by itself, outweighed by a citizen’s interest in their immediate relative’s application being granted. Some immigrants will have the option of departing the United States and applying for an immigrant visa from a U.S. consulate in their home country in order to avoid a presumption of immigrant intent and a determination of inadmissibility on misrepresentation grounds.

This change highlights the fact that immigration policy can change much more quickly than the law, and many immigrants will struggle to keep up with policy changes without the help of a competent immigration attorney.  Given the shifts described above, it would be wise for any non-immigrant who has taken steps toward U.S. residency within 90 days of their arrival to speak to a U.S. immigration attorney.

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