The Department of State has quietly revised guidance to Consular Officers on the “30/60 Day Rule” regarding adjustment of status applications.

The Rule sets standards for determining whether an alien would be inadmissible for inconsistent conduct. It provides:

• If an alien engaged in inconsistent conduct within 30 days of an entry, a willful misrepresentation could be presumed.
• If the conduct occurred after 30 days, but within 60 days of an entry, there was no presumption of misrepresentation and the alien would be given the opportunity to present countervailing evidence.
• After 60 days, the inconsistent conduct alone would not constitute a basis of inadmissibility.

The Rule provided aliens flexibility to postpone filings to avoid the presumption of misrepresentation. A foreign national making a willful misrepresentation to gain entry into the U.S. can be barred for life from entering the U.S.

Willful misrepresentations are not just false statements. Conduct inconsistent with representations made in order to procure an immigration benefit also are considered willful misrepresentations.

Inconsistent conduct (also known as “pre-conceived intent”) includes conduct that violates or is otherwise inconsistent with an alien’s non-immigrant status, such as:

• Engaging in unauthorized employment
• Enrolling in a course of academic study, if such study is not authorized for that non-immigrant classification (e.g., B status)
• Being in B or F status, or any other status prohibiting immigrant intent, and marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S.
• Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment

The Department of State eliminated the Rule as of September 1, and substituted a stricter one. The “90 Day Rule” applies to all visa applicants (immigrant and non-immigrant). Under the revised FAM, if an alien engages in conduct inconsistent with the alien’s non-immigrant status within 90 days of an entry, a willful misrepresentation can be presumed and the burden of proof shifts to the alien to establish that “his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

While the FAM guidelines are applicable directly to consular officials adjudicating visa applications abroad, the prior “30/60 Day Rule” was generally followed by USCIS in adjudicating applications to adjust status in the United States. The full effect of this change to the FAM is not yet known. However, as USCIS has announced mandatory in-person interviews for employment-based adjustment of status recently, individuals and practitioners can expect additional scrutiny of prior entries. Please reach out to your Jackson Lewis attorney with any questions about inconsistent conduct and strategies to consider in light of recent developments.