Actions during First 90+ Days May Result in Allegation of Misrepresentation

The U.S. government has always been mindful of the activities of certain foreign-nationals to make sure their activities are within the parameters of their immigration status.  However, The Department of State recently issued a new rule that puts a renewed focus on this principle.  Importantly, the new rule also expands the relevant period of focus from 60 days to 90 days following entry to the United States.  The rule states that the government may also consider actions even beyond 90 days.

Specifically, the government will look to the actions of certain foreign-nationals during at least 90 days to draw an inference on whether the foreign-national made a misrepresentation to the US government about his/her intention for that specific immigration status.  Foreign-nationals whom the government concludes made such a misrepresentation will have immigration difficulty in the future.

Examples

  • E-3, TN, Singapore/Chile H-1B1: Your intent must be to work in the US temporarily only —not apply for a green card within the U.S. to stay permanently.
  • Visitors/tourists (B visa or ESTA): You must be able to demonstrate that your intention upon entry was to be a tourist and return to your home country–not to apply for a green card within the U.S., work, or study.
  • Students (F-1, F-2): Your status allows you only to study in the U.S. – not to apply for a green card or to work (generally).
  • Cultural exchange individuals (J-1, J-2) You are authorized only for the specific purpose of your status, not to seek a green card to stay permanently in the U.S.
  • H-1B, L-1, O-1, TN: You must work for the specific employer on your approval notice—not work for another employer or be unemployed.

The Presumption is Against the Foreign-National

Under the new rule, the government will presume that foreign-nationals who act inconsistently with their status within 90 days of entry have willfully misrepresented their intentions for obtaining their immigration status.  Fortunately, foreign-nationals are given a chance to rebut the presumption with their own evidence.  If the government ultimately concludes there has been a misrepresentation, it will make obtaining future immigration benefits more difficult.  If a foreign-national engages in conduct inconsistent with his/her status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation, though it can still be questioned.

As the law continues to change, Dayzad Law will monitor these developments and keep our clients informed. In the meantime, clients should be sure they understand the terms and limits of their specific visas, so as to avoid any potential violations, especially during the first 90 days of their arrival into the U.S.

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