90 day rule dating
While it is not clear whether the 90-day rule will be applied retroactively, applicants can take a deep breath and use the same analysis even if it is applied retroactively.
The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation: This amendment replaces the former 30/60 day rule, which still exists in the USCIS policy manual, but is likely to be replaced.If the conduct occurred more than 60 days after entry, there was no basis for a misrepresentation finding.The new 90-day rule that replaces the 30/60 rule is clearly harsher as the presumption that the person misrepresented his or her intentions is for a 90-day period as opposed to a 30-day period.After several weeks, they decide to get married and apply for adjustment of status.Even though this conduct occurred within 90 days from the entry, it can be demonstrated that there was never an intent at the time of admission to apply for adjustment of status in the US. If the applicant can establish that the misrepresentation was not material, then that too would be a defense against a misrepresentation finding. Mehta and Sophia Genovese-Halvorson The State Department has abruptly amended the Foreign Affairs Manual to provide broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas.
A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.
The applicant must also be given an opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.
The new 90-day rule will admittedly greatly affect people entering under the Visa Waiver Program that admits visitors for a 90-day period.
Both practitioners and applicants should not reflexively take extreme actions such as withdrawing an already filed adjustment application and switch to consular processing, or refrain from filing such an application within 90 days.
Rather, they should deploy the following analysis to determine whether there could be defense to a potential allegation of misrepresentation.
The funny thing to me is that marriage decades ago was sacred and so was giving yourself physically to someone.