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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.

Expansion of the Provisional Unlawful Presence Waiver

Today, July 29, 2016, the Department of Homeland Security (DHS) will publish in the Federal Register a final rule expanding eligibility for the provisional unlawful presence waiver, filed on Form I-601A.  The new rule will take effect on August 29, 2016.

Since its launch in March 2013, many immigrants have utilized this waiver to minimize the time that they are separated from friends, family, work, and their community because they are able to apply for the waiver and receive approval before traveling abroad for consular processing.  For certain applications, the process that often results in many months of separation now can be completed in less than two weeks.  Additionally, because the waiver is discretionary, immigrants benefit from the knowledge that DHS has determined that they warrant a positive exercise of discretion before they leave the country, making their journey and application process far less risky.

Until the passage of this new rule, however, the provisional waiver was only available to immigrants who were the spouses, children, and parents of certain U.S. citizens, otherwise known as “immediate relatives.”  The waiver was further limited because the applicant had to prove that a U.S. citizen spouse or parent would experience extreme hardship upon denial of the immigrant’s admission to the United States; in other words, hardship to a spouse or parent who was a lawful permanent resident (“LPR” or “green card” holder) was not taken into consideration.

Beginning August 29, 2016, the rule will be expanded to include all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.  The expanded group of individuals includes the beneficiaries of family-sponsored and employment-based immigrant visa petitions, and Diversity Visa selectees, so long as they have a qualifying relative under the statute for purposes of the extreme hardship determination (a U.S. citizen or LPR spouse or parent).  Some additional changes were made to the regulation, including the elimination of a denial based on a “reason to believe” that another ground of inadmissibility exists.

DHS comments associated with the publishing of the final rule make it clear that this expansion is a benefit to the entire nation: it encourages the efficient use of government resources by streamlining a process that has previously been fraught with problems, it encourages eligible immigrant visa applicants to proceed forward with their visa processing and therefore integrate more quickly and fully into their U.S. community, and, most importantly, it minimizes the time that U.S. citizens and lawful permanent residents are separated from their loved ones.  DHS estimates that approximately 100,000 individuals will become eligible under the new rule during the rule’s 10-year period of analysis.  The expansion is a welcome addition to our immigration system, and comes at a time when change is desperately needed.

Ignoring Alternatives & Increasing Detention of Families

Although the number of families being detained on the U.S.-Mexico border has dropped, the government is moving forward with plans to increase its capacity to detain families, with plans to open a new facility to house 2,400 women and children in Dilley, Texas, next month. Many of the women and children who would be housed in this facility are fleeing domestic abuse or gang violence. While Immigration and Customs Enforcement has the option of releasing individuals on bond or providing an ankle monitor, detention is clearly the preferred solution. Detention is not only an expense that falls on the shoulders of tax-payers; it also exposes detainees to the risk of sexual abuse. In fact, a complaint from earlier this month alleges recent sexual abuse in the Karnes City, Texas, facility, and other centers were previously closed after numerous allegations of abuse. Meanwhile, an alternative program from 2004 known as ISAP (Intensive Supervision Appearance Program) has proven to be widely successful, with 93% of participants showing up to their scheduled hearings on their own accord.

Bond determinations are made based on an assessment of an immigrant’s potential danger to the community and the risk that they will not attend their removal proceedings, but instead going into hiding. In many of these cases, women and children have come to this country seeking protection and have turned themselves in at the border. They have very few resources. The chance that they will post a bond and not attend future court hearings is highly unlikely. A denial of bond, or a very high bond, should be reserved for individuals with a criminal history who have already proven that they pose a danger to society, or that they are likely to not show up for a scheduled hearing.

Expense and risk are not the only issues that cause concern to many; detention in these remote facilities means less access to paid or pro bono legal services. Although detainees at the Artesia center are provided a list of pro bono services, the services listed are hours away and the detainees often have no means of contacting them. If they elect to hire private counsel, they will have to look elsewhere as well, as the nearest immigration attorney is approximately an hour away from the facility. Volunteer attorneys who have traveled to Artesia to offer pro bono services note that there is not even a business center in the town of Artesia where an attorney can make photocopies or send faxes.

In response to the proposed development of the Dilley facility, several prominent Democratic senators recently wrote a letter to the Secretary of Homeland Security. In that letter, found at, the senators wrote:

“The administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space. Concerns over flight risk can be ameliorated through Alternatives to Detention (ATD), which help ensure the appearance of asylum seekers in immigration proceedings and are more cost effective.”

From the outside, it certainly seems that inexpensive and humane alternatives are low on the administration’s priority list, and one can’t help but wonder why – or wonder what priorities are more important. Several Democratic senators, at least, are left wondering.

Sending Children to the Most Dangerous City in the World … As Quickly As Possible

Honduras has the highest homicide rate in the world, by a significant margin. According to 2012 statistics, El Salvador and Guatemala both rank in the top five most dangerous countries. It is no wonder that children, youth, and young families from these three countries are fleeing to the United States in droves, asking for protection from the strong and stable U.S. government. Despite the grave dangers facing any of these individuals upon return, the U.S. Department of Homeland Security has begun to expedite deportations of this vulnerable group, often deporting them directly to the most dangerous city in the world: San Pedro Sula.

Children and families who have recently arrived from Central American have been placed on priority dockets in Colorado and elsewhere, with some respondents only seeing an immigration judge by teleconference. Whereas juveniles were previously scheduled during a special docket on one afternoon a month in Colorado, five full days have been set aside for the juvenile and family docket in the Month of August, and two more have already been scheduled before September 12th.

According a morgue director in San Pedro Sula, he accepted the bodies of 42 dead children since February of this year. As many as 25% of those children had been recently deported from the U.S. The violence has continued unabated; that same morgue director reported that another five recently deported youth have died of gunshot wounds in the last week. The U.S. government is literally sending these youth and children to their deaths, and it is expediting the process.


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