Update on the new 90 Day Rule and USCIS

Back in.    we wrote an article about the Department of State adopting a new rule on inadmissibility called the 90-day rule.  This replaced their previous 30/60 rule.  For a full rundown on the change in the regulation and what it means, see the article we wrote here.  Basically, the 90-day rule means that any activity contrary to non-immigrant intent done within 90 days of entry on any visa that requires such intent will be evidence of fraud (i.e. that you did not have non-immigrant intent when you were admitted to the United States).  At the time, we were not certain what USCIS’ stance on the new rule would be.  Now, we know.

Just recently USCIS amended it’s Adjudicator’s Handbook to include the following:

3. The U.S Department of State’s 90-Day Rule

The U.S. Department of State (DOS) developed ​a​ 90-day rule ​to​ assist consular officers in evaluating misrepresentation in cases involving ​a person who ​​violated his or her nonimmigrant status or whose conduct is or was inconsistent with representations made to either the consular officer concerning his or her​ intentions at the time of the visa application or to the immigration officer at the port of entry​.​

The 90-day rule is not a “rule” in the sense of being a binding principle or decision​. ​The rule is simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. This DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Securityaccording to existing procedures.

While at first blush this may look like they are not adopting this rule, closer examination shows us that this is not necessarily the case.  The language used above is the SAME language that USCIS used to explain the previous 30/60 day rule.  So it seems that USCIS will now use the 90-day rule (albeit as a guiding principle more than as a rule).  However, as decisions by USCIS can be appealed to both the Administrative as well as the Civil Courts, it is important to remember that the rule is more nuanced if you are in the US rather than outside the US (where the DOS can make any decision they feel fit and there is no appeal).

While there have been no cases yet on the 90-day rule, there have been many on the 30/60-day rule.  Thos cases may help demonstrate what the Administrative Courts (at least) are going to do.  First, the Administrative Courts have fairly consistently found that the application of such a rule, although not required, CAN be done because they were persuaded by the Department of State’s reasoning in developing the rule.  They have found in many cases that the application of the rule does create the presumption of a misrepresentation, but have also found in certain cases, that the evidence submitted by the petitioner has overcome that presumption.  The Courts have also found (fairly consistently) that the marriage to a US Citizen and subsequent filing of a green card application, even if done within the 30/60 day time period, in and of itself, is not enough to find a misrepresentation or fraud.  In other words, the positives of being married to a US Citizen outweigh any negatives in this type of case – so unless there are other negatives, such cases should not be denied solely based upon the activities related to the marriage and immigration process that were conducted within 30 or 60 days of entry.

While we cannot know what will happen until cases are actually decided by the Administrative Courts specifically on the application of the 90-day rule, I think it is prudent to continue to follow past rulings in this area and to assume that the Courts will allow USCIS to use this rule as a guideline.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.