On Sept. 1, 2017, the U.S Department of State (DOS) updated the Field Adjudicators Manual (FAM) at 9 FAM 302.9-4(B)(3).  The Field Adjudicators Manual (FAM) serves to guide consular officers in their adjudications process, and this particular section provides guidance regarding “misrepresentation” by applicants “at the time of visa application or to DHS when applying for admission or for an immigration benefit.” The changes include the addition of a section entitled “Inconsistent Conduct Within 90 Days of Entry.” The new language effectively eliminates the prior “30/60 day rule” which found a presumption of misrepresentation only if an alien engaged in activity inconsistent with their nonimmigrant status within 30 days of admission, and generally no basis for misrepresentation if an action was taken after 60 days.  A finding of misrepresentation can have extreme consequences.  With this recent change there are several things to keep in mind:

  • New guidance may have negative consequences for individuals who have relied upon the old rule as well as those who make immigrant filings in the future.
  • Individuals cannot engage in any activity within a 90-day period of entering the United States that is inconsistent with the immigration classification under which they entered the country.
  • Those who do perform activities that are inconsistent with their status may be found to have made a willful misrepresentation when securing the visa at the Consulate or when entering the United States and being inspected by an immigration officer.  Such individuals may be found inadmissible and barred from entering the United States for life.
  • Types of impermissible conduct:
    • Getting married in the United States within 90 days of entering the country on a visa that requires an intent to return to your home country (e.g., B visa, Visa Waiver Program, J-1, F-1, etc.)
    • Working without authorization
    • Enrolling in school when such activity is not permitted by the visa (for example B visas and the Visa Waiver Program do not allow for school enrollment)
  • The new rule was announced without any warning or period of public comment.  Public comment is not required but the sudden nature of the change increases the number of potential individuals impacted.
  • Under the old rule if an individual engaged in any of the above conduct within a 30-day period, a finding of fraud or misrepresentation could be presumed.  Now that period is extended to 90 days.
Tags: Courtney Noce, DHS, Greenberg Traurig, GT Law, gt_law, Ian Macdonald, Immigration, nonimmigrant, US Department of Travel, Visa
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Photo of Ian Macdonald Ian Macdonald

Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital

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Ian R. Macdonald Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. He focuses his practice on developing, assessing and managing global mobility programs for multinational companies on a range of challenges affecting the movement of people capital domestically and internationally, including secondment agreements, benefits transferability, local host country employment concerns and immigration.

Ian and his team work closely with companies to manage and modify, where needed, corporate immigration programs to maximize efficiency, service and regulatory compliance levels. He is experienced with the full range of business immigration sponsorship categories (visas and permanent residence), anti-discrimination rules to reduce or eliminate risk of employment litigation, employer sanction cases, and I-9 and E-Verify compliance. Ian assists clients with establishing risk-based performance standards (RBPS) and Department of Homeland Security protocol, providing risk assessment assistance to corporations subject to Chemical Facility Anti-Terrorism Standards (CFATS) and assisting clients with ITAR/Export Control compliance within the immigration context.

Ian has developed strategic relationships abroad that he utilizes when working with clients to ensure compliance with foreign registration requirements. He is experienced with analyzing complex global mobility opportunities on country-specific matters to facilitate the transfer of personnel. Ian is also experienced in counseling employers on immigration strategy as well as immigration consequences of mergers and acquisitions, reduction in workforces, and furloughs.

Prior to joining the firm, Ian worked for the United Nations, various non-governmental think tanks and corporate law firms in London, Washington, D.C., New York and Atlanta.

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Photo of Courtney B. Noce Courtney B. Noce

Courtney B. Noce co-chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging

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Courtney B. Noce co-chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN). Courtney has a particular understanding of working with the retail industry and the ever-evolving challenges this industry faces.

Courtney works closely with companies on complex challenges associated with I-9 employment verification, enforcement actions, as well as H-1B and LCA compliance. She provides proactive strategies in the form of onsite training, internal audits and reviews, as well as deploying best practices to minimize exposure and liabilities in the event of government investigations.

Courtney also assists multinational clients in the area of global mobility and immigration. She has experience helping companies move key personnel into all parts of the world.

Prior to practicing law Courtney worked with the Georgia Department of Economic Development as a Business Development and Project Manager. In this role, she helped Life Sciences and Technology companies move to and expand in the State of Georgia. She worked frequently with international and domestic companies addressing global mobility needs, and is acutely aware of the important role immigration plays for global companies.

Courtney has studied, lived, and worked in Canada, France, and Italy. She is fluent in Italian, proficient in French and has basic Spanish skills.

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