Visa fraud presumption of willfulness broadened

The State Department has tightened its policy regarding whether nonimmigrants who engage in conduct inconsistent with their status do so willfully and therefore evidence an intent to commit visa fraud.

According to a change to the Foreign Affairs Manual for State Department staff, officers may presume that the conduct is willful if it occurs within 90 days of the nonimmigrant’s entry into the U.S. Under previous policy, a presumption of misrepresentation applied to conduct that occurred within 30 days of entry.

For purposes of applying the 90-day rule, conduct that violates nonimmigrant status may include engaging in unauthorized employment or academic study, or demonstrating an intent to reside in the U.S., such as marrying a U.S. citizen or permanent resident or applying for a green card while in certain nonimmigrant statuses, e.g., B-1 visitors or F-1 students, that do not allow dual intent.

Key points:

• The change makes it riskier for certain nonimmigrants, primarily visitors and students, to apply for adjustment of status within 90 days of entering the U.S.
• Once the presumption of willfulness applies, the burden of proof falls on the foreign national to demonstrate that their intent was consistent with their nonimmigrant status. If unable to rebut the presumption, the foreign national will “most likely” be found ineligible for the visa or immigration benefit.
• Individuals found to have committed visa fraud or misrepresented a material fact for purposes of obtaining a visa may be permanently ineligible for admission to the U.S. and for other immigration benefits.

Background: Previously, the State Department applied a 30/60 day rule, under which nonimmigrants who violated the terms of their status within 30 days of entering the U.S. were presumed to have misrepresented their intentions in their visa interview, conduct that occurred between 30 and 60 days of entry was not presumed to be a misrepresentation but gave rise to a “reasonable belief” of misrepresentation that the individual could rebut, and conduct occurring after 60 days was not subject to the presumption.

BAL Analysis: The changes primarily affect foreign students and visitors, including visa-waived nationals, who are not entitled to a dual nonimmigrant and immigrant intent when applying for a visa or immigration benefit. The revisions to the manual are part of the State Department’s efforts to comply with President Donald Trump’s March 6 memorandum that directed relevant federal agencies to rigorously enforce all existing grounds of inadmissibility, and to issue new guidance in compliance with that directive. Further restrictions are likely to follow, and all employees on nonimmigrant status should be aware that they are likely to face increased immigration scrutiny.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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