Tag Archive for: Dual intent

Cyrus Mehta

USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour

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By Cyrus D. Mehta and Kaitlyn Box*

On December 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance in the USCIS Policy Manual pertaining to nonimmigrant students in F and M status. An F-1 visa allows a nonimmigrant student to enter the U.S. to student at a college or university, while nonimmigrants in M status pursue training at a vocational school or other nonacademic institution. Pursuant to INA 101(a)(15)(F) and INA 101(a)(15)(M), foreign students in F and M status must “intend to depart from the United States after their temporary period of stay … and have a foreign residence that they have no intention of abandoning”.

The USCIS Policy Manual acknowledges that “The foreign residence requirement should be adjudicated differently for students than for other nonimmigrants. Typically, students lack the strong economic and social ties of more established applicants, and they plan longer stays in the United States. […] Considerations should include the student’s present intent, not what they might do after a lengthy stay in the United States”. Newly added language in the Policy Manual also makes clear that a foreign student who is the beneficiary of a labor certification or I-140 petition filed by a prospective employer can still demonstrate the requisite intent to depart the United States, stating: “A student may be the beneficiary of an approved or pending permanent labor certification application or immigrant petition and still be able to demonstrate their intention to depart after a temporary period of stay. USCIS officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or an immigrant visa petition as not necessarily impacting their eligibility for the classification, so long as the student intends to depart at the end of their temporary period of stay.” A further addition to the Policy Manual broadens the requirement that foreign students must maintain a residence abroad:

“If a student had a foreign residence immediately prior to traveling to the United States, even if such residence was with parents or guardians, they may be considered to be maintaining a residence abroad if they have the present intent to depart the United States at the conclusion of their studies. The fact that this intention may change is not a sufficient reason to deny them F classification. In addition, the present intent to depart does not imply the need to return to the country from which they hold a passport. It means only that they must intend to leave the United States upon completion of their studies. Given that most students are young, they are not expected to have a long-range plan and may not be able to fully explain their plans at the conclusion of their studies.”

This update to the Policy Manual is not only a welcome clarification for foreign students, but it also brings USCIS policy in line with consular guidance and established case law. Section 402.5-5(E)(1)(U) of the Foreign Affairs Manual, for example, instructs consular officers as follows:

If a student visa applicant is residing with parents or guardians, you may consider them to be maintaining a residence abroad if you are satisfied that the applicant has the present intent to depart the United States at the conclusion of their studies.  The fact that this intention may change is not sufficient reason to deny a visa.  In addition, the present intent to depart, does not imply the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of their studies.  Given that most student visa applicants are young, they are not expected to have a long-range plan and may not be able to fully explain their plans at the conclusion of their studies.  You must be satisfied at the time of the application for the visa that the applicant possesses the present intent to depart at the conclusion of their approved activities.

9 FAM 402.5-5(E)(1)(U)(c)

The new guidance is also in line with the Board of Immigration Appeals’ (BIA) decision in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975), which recognized  inherent dual intent in nonimmigrant visas. Matter of Hosseinpour involved an Iranian citizen who entered the U.S. as a nonimmigrant student and later applied for adjustment of status. After his adjustment of status application was denied, he was placed in deportation proceedings and found deportable by an immigration judge on the ground that he violated his nonimmigrant status by filing an adjustment of status application. The BIA disagreed with this interpretation of the nonimmigrant intent requirement for foreign students, noting the amendments to the Immigration and Nationality Act had expressly removed a provision stating that an individual’s nonimmigrant status would automatically terminate if he filed an adjustment of status application. Thus, the BIA held that “filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status”. The BIA also referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)).

USCIS’ new guidance appears to reaffirm the BIA’s holding in Matter of Hosseinpour and we refer readers to our prior blog, “Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas”. These changes also reflect the reality of many nonimmigrant students’ situations. A foreign student could intend to depart the United States at the end of their degree program, but simultaneously hope to stay in the country if an opportunity to do so arose. At the time of his entry into the U.S.,  the foreign student could hardly predict that he could later apply for adjustment of status based on marriage to a U.S. citizen spouse or a prospective employer would file an  I-140 petition. The fact that a foreign student desires to pursue one of these paths to permanent residence if the opportunity arises should  not mean that she cannot also possess the requisite nonimmigrant intent.

The flexibility afforded by Matter of Hosseinpour and USCIS’ new policy guidance can be extended to other categories of nonimmigrants, as well. A few categories of nonimmigrant visas, such as H-1Bs and L-1s,  expressly allow “dual intent” in INA 214(b), meaning that a visa holder may pursue permanent residence while simultaneously maintaining his nonimmigrant status.  Other nonimmigrant categories allow for quasi dual intent such as the O, E-1, E-2, and P categories. Nonimmigrants in these categories are not required to maintain a foreign residence but are still required to leave at the end of their authorized stay.   Other categories of nonimmigrant visas, however, are explicitly not dual intent, including E-3 visas, which allow Australian nationals to come to the U.S. perform services in a specialty occupation. Although an E-3 is also a “specialty occupation” visa, E-3 workers are more restricted from seeking permanent residence in the U.S. than those in H-1B status. Expanding the flexibilities reflected in USCIS’ additions to the policy manuals would greatly benefit nonimmigrants and better reflect the nuances inherent in today’s immigration landscape.

The clarification in the USCIS Policy Manual will have the greatest impact on those filing for a change of status to F-1 or M-1 from another nonimmigrant visa status such as H-1B, and who may be beneficiaries of I-130 or I-140 petitions. It would also assist dependents in H-4 status who are changing to F-1 status because their parent’s I-140 petition is stuck in the India EB-1, EB-2 or EB-3 backlogs and their age has not been protected under the Child Status Protection Act. They will not be held to the impossibly rigid standard of maintaining a foreign residence abroad they have not abandoned,  especially if they left their home country at a young age many years ago.  Under the new clarification they would be considered to be maintaining a foreign residence abroad so long as they had one prior to coming to the US even if it was with their parents or guardians and they have a present intent to depart at the end of their studies.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student  Nonimmigrant Intent

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The State Department has given much needed holiday gifts to ease delays in visa processing brought about by the evisceration of consular operations due to Covid-19.

According to a  December 22, 2021 article in Roll Call, visa applicants in London, Paris and Mexico City, for instance,  must wait about two months for a nonimmigrant visa appointment. In Toronto, the wait for such an appointment is more than a year, while at US Consulates in India, visa appointments are available only on an emergency basis. The situation has become so dire that many in the US who are in status but whose nonimmigrant visas have expired prefer to remain in the US rather than travel abroad to visit family. Those who leave the US must wait for months before they can get a new visa to reenter the US.

I was quoted in the Roll Call article advocating that the 48 month interview waiver policy be extended, and a day later on December 23, 2021, the State Department did precisely this by  indefinitely extending the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration. The State Department went even further by waiving the in person interview for many nonimmigrant visa classifications. To summarize: Those who have previously received any type of visa, or have used ESTA to travel to the US, and have never been refused a visa in a way that wasn’t overcome, may be able to obtain H-1B, H-3, H-4, L, O, P, and Q visas without an interview. The expanded interview waiver policy can be found at https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/.

The expanded interview waiver policy will most certainly provide relief to visa applicants who were otherwise subject to interminable delays in visa processing as a result of limited visa operations due to Covid-19. It will also allow consulates to focus their limited resources on visas that require interviews such as immigrant vias, E visas and those not subject to the expanded interview waiver policy thus shortening the delays. Even if interviews can be waived, “embassies and consulates may still require an in-person interview on a case-by-case basis and dependent upon local conditions.” There is also uncertainty whether people would be able to easily schedule Drop Box appointments as many report that obtaining such appointments in India are hard to get.

The State Department’s expanded interview waiver policy is an example of how the Biden administration can bring about much needed relief to visa applicants through a simple administrative fix. More can be done such as reinstating the ability to obtain a visa stamp in the US itself if the first visa in the same classification  was issued at a US embassy or consulate. This used to be the case until the State Department discontinued stateside visa processing in 2004 as a result of the need to impose  enhanced security measures after the September 11, 2001 attacks. The State Department should also consider conducting video interviews, among other measures suggested by AILA to reopen America,  as that would certainly help in reducing the backlog of immigrant visa applicants waiting to be processed at US consulates around the world.

 

Relaxed Policy in Determining Student Nonimmigrant Intent

In another smart move, the State Department brought back the relaxed policy regarding F-1 and M-1 visa nonimmigrant intent in the Foreign Affairs Manual at https://fam.state.gov/FAM/09FAM/09FAM040205.html. The new policy recognizes that students applying for  F-1 or M-1 visas do not have the same strong ties with their home country as B visa applicants, and they should not be subject to the same vigorous scrutiny of determining whether they have a residence abroad which they have no intention of abandoning and whether they intend to depart the US after they finish their studies. The following extract from 9 FAM 402.5-5(E)(1) is worth noting as its refreshing:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas.  The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa.  It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.  These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future.  Student visa adjudication is made more complex by the fact that students typically are expected to stay in the United States longer than do many other nonimmigrant visitors, to complete their program of studies.  In these circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States.  Therefore, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student would have, and their immediate intent………

While students may not be able to demonstrate the same strong “ties,” present in other classes of applicants, their typical youth often conveys a countervailing major advantage in establishing their bona fides: they are not expected to, or do not necessarily have a long-range plan, and may legitimately not be able to fully explain their plans at the conclusion of their studies.  As most students are relatively young and many reside with parents or guardians, you can consider a student to be maintaining a residence abroad if he or she intends to return to reside with parents or guardians.  Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities.  That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.  Further, the present intent to depart, does not infer the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of studies.

 

This was the prior policy of the State Department from 2005 until it was modified by the Trump administration in 2017, and the history of this policy is discussed in our prior blog State Department Toughens Standard for Assessing a Foreign Student’s Ties With Home Country. It was first articulated in 2005 after student visa applications were being denied in the aftermath of the September 11 terrorist attacks. The new policy that required examining a student’s nonimmigrant intent more leniently led to fewer student visa refusals. The Trump administration guidance was more restrictive, but student visa applications were not being wholesale rejected although students were more vulnerable to rejections as consular officers could not rely on the same broad guidance as before.    Based on the reaffirmation of the relaxed guidance on December 20, 2021, students applying for F or M visas should not be denied just because they do not have strong ties with the home country, and even though the student must still demonstrate a present intent to depart the US, if this intention is subject to change or even likely to change in the future is not reason enough to refuse the visa.

Notwithstanding the change in State Department policy as expressed in the FAM, the USCIS is unfortunately not bound by the FAM. Many children of parents caught in the employment-based second and third preference backlogs who are aging out are forced to change status from H-4 to F-1, and they too should also be able to benefit from this guidance. It would behoove the USCIS to also follow the State Department policy when one applies for a change of status to F-1 in the US. Nonimmigrant children  should not be penalized for not having ties abroad as they have been here for most of their lives and are being forced to change to F-1or M-1 status just because their parents could not timely receive a green card due to the per country limits in the employment preferences.  They also are unable to claim the benefit of the Child Status Protection Act due to erroneous USCIS policy of not allowing use of the Date for Filing in the Visa Bulletin to freeze the age. The fact that they or their parents have have sought permanent residence should not be held against them when they apply for change of status from H-4 to F-1 in the US. The best way for the USCIS to safeguard against denials of change of status applications  is to recognize that there is an inherent dual intent in all nonimmigrant visas, including F-1 and M-1 visas, as established in Matter of Hosseinpour. In that case, the Board of Immigration Appeals recognized in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. Matter of Hosseinpour is still good law. The Biden administration must continue to use all possible tools and resources to make life easier for nonimmigrants caught in the backlogs until Congress acts. Recognizing dual intent in nonimmigrant visas would help in ameliorating the plight of aged out children desiring to remain in nonimmigrant status in the US.

 

 

 

 

 

Cyrus Mehta

Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas

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By Cyrus D. Mehta & Isabel Rajabzadeh*

One of the many benefits of filing an Adjustment of Status Application (AOS) is the ability to concurrently apply for work authorization (Form I-765/EAD). In addition, the applicant can remain in the United States while the AOS is pending without maintaining status, although most opt to maintain their dual intent nonimmigrant status for as long as possible. One of the most popular dual intent visas are H-1Bs. By extending their nonimmigrant H-1B status, the individual would not start accruing unlawful presence if the AOS is denied for whatever reason. Extending nonimmigrant status while the AOS is pending is also beneficial in some nonimmigrant visa categories, including the H-1B visa, because it allows the individual to continue to work with the same employer without having to separately apply for an EAD.

As USCIS service centers continue to be severely backlogged, we are required to adjust legal strategy to combat these delays. One of the most affected is the processing of work authorization. Earlier this year, the USCIS updated its expedite request policy. Unfortunately, notwithstanding the broadening of the criteria, the requests seem to be met with high scrutiny and are successful in limited cases. Nonetheless, we recommend filing the request if one meets the criteria. Absent a successful expedite request, EADs based on pending AOS applications are taking 9+ months to process. As explained above, individuals therefore find themselves relying on their nonimmigrant status for work authorization while their AOS EADs are pending in the USCIS limbo.

For many nonimmigrant categories, the beneficiary must not have the intent to permanently immigrate to the U.S. As such, an important requirement for most nonimmigrant visas is having “a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” (INA 101(a)(15)(B)). Although the H-1B visa is a nonimmigrant visa, it allows for dual intent. This means that the H-1B visa holder can have the intention of immigrating to the U.S. while still maintaining his/her H-1B nonimmigrant status. The Immigration and Nationality Act carves out the dual intent doctrine by explicitly excluding H-1B visa beneficiaries from the requirement that “every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” (See INA 214(b)). Therefore, when an H-1B visa holder applies for adjustment of status, he/she is able to maintain both the nonimmigrant status and have the immigrant intent. Other visas permitted to have dual intent also include the L and V visa, under the carve out in INA 214(b). The O, P, and E visas are quasi dual intent visas established by regulations.  While they allow the nonimmigrant to be in the U.S. in that status without needing to have a foreign residence, they still do not permit them to intend to seek permanent residence in the U.S. As an illustration of quasi dual intent, under 8 CFR 214.2(o)(13), an intent to remain temporarily in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon.

As visa holders enjoy the benefits of dual intent, we honor the memory of Dale Schwartz, the late immigration attorney who was highly respected in the field and was a former President of the American Immigration Lawyers’ Association. Mr. Schwartz had faced criminal charges in the 1980s in the wake of federal officials investigating applications submitted on behalf of a British businessman who came to the United States in 1980 to work for an American aerospace company. The government charged Mr. Schwartz with eight counts of mail fraud and false statements and asserted that the British businessman intended to live in the U.S. permanently even though he was seeking a temporary visa. The officials ultimately dropped the criminal charges, and we remember him here as a zealous advocate for nonimmigrant dual intent. It is because Mr. Schwartz took the fall for everyone that Congress enacted the dual intent carve out in INA 214(b) in 1990.

Even before dual intent got recognized in the INA, the Board of Immigration Appeals in Matter of Hosseinpour recognized way back in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. There, the BIA was tasked with reviewing an F-1 visa holder’s eligibility for nonimmigrant status after filing an adjustment of status application. In that case, the BIA explicitly held that the filing of an adjustment of status application “is not necessarily inconsistent with the maintenance of lawful nonimmigrant status,” although F-1 visas are not dual intent visas. In its reasoning, the BIA referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)). Further, the BIA reasoned that the F-1 student who applied for adjustment of status kept his intention to remain a nonimmigrant student even though he had applied for adjustment of status. In that case, the student was willing to return home when his studies were completed if ordered to do so. However, the BIA ultimately dismissed the F-1 visa holder’s appeal because the individual did not timely extend his nonimmigrant stay and remained beyond the authorized length of his stay.

In instances where the beneficiary does not hold a dual intent nonimmigrant visa such as a TN or H-1B1 and applies for AOS, they must wait long months for their work authorization to be processed by the USCIS in order to work. If they apply for an extension of the underlying nonimmigrant status while the adjustment application is pending, they will likely receive push back from the USCIS on the ground that the nonimmigrant visa status does not allow for dual intent notwithstanding Matter of Hosseinpour. These nonimmigrants who face this sort of push back from the USCIS when extending their status should invoke the holding in Hosseinpour, which is still good law, that they should be entitled to the extension of nonimmigrant status even if they have expressed an intention to apply for permanent residence. Indeed, as in Hosseinpour, these nonimmigrants would be willing to depart the U.S. at the end of their nonimmigrant status in the event that their adjustment of status application gets denied.

Moreover, when nonimmigrants enter the U.S. in a B-2 visitor status, they are required to maintain an intention to return home to a foreign residence, although Hosseinpour also allows them to have a desire immigrate to the US. Thus, one who is the beneficiary of an I-130 petition can still legitimately enter the U.S. as a visitor if the objective is to process for the immigrant visa at the U.S. consulate. Furthermore, one with a desire to immigrate is also allowed to change one’s mind after being admitted and apply for adjustment of status in the US. During Covid-19, many nonimmigrants who came with the intention of returning home decided to stay in the U.S. and apply for adjustment of status as immediate relatives of U.S. citizen spouses or children when the Covid situation got exacerbated in their home countries.

The project to carve out dual intent in the INA for H-1B, L, and V visa holders is only half completed. Enshrining dual intent in the law will ensure that noncitizens will not be denied a visa or admission if they are able to extend, change or adjust status legally. They will also be able to maintain nonimmigrant status while their adjustment applications are pending. INA 214(b) should be amended to remove the presumption that every noncitizen is an immigrant unless proven otherwise.  The relevant concern to ensure compliance with a temporary visa should solely be focused on whether the noncitizen will violate status by overstaying or working in an unauthorized capacity, and not whether they will pursue other lawful visa options, including adjustment of status, once they enter the U.S. It is important to enact dual intent for all nonimmigrant visa categories to remove needless contradictions and complications in U.S. immigration law.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice.)

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students

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In September 2017, the State Department abruptly amended the Foreign Affairs Manual to provide consular officers with 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. I previously blogged on this development here and here,  I am blogging yet again because I am pleased to report on further recent changes,  which are more positive this time especially for foreign students.

In order to presume fraud or misrepresentation, the applicant must have engaged in conduct inconsistent with representations made to consular officers or DHS officers within 90 days of applying for a visa, admission or other immigration benefit. If the foreign national engaged in inconsistent conduct more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule”, the FAM is not codified law or regulation, but merely sub-regulatory guidance for consular officials abroad. Thus, I prefer to call it guidance rather than a rule.

The latest modification at 9 FAM 302.9-4(B)(3)(g)(2) cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

(i)Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv)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 big change is in (iii) where the words “or F status, or any other” have been stricken. The omission of these few words provides welcome relief to students in F status who study in the US as well as other nonimmigrants in status prohibiting immigrant intent such as J status. A student who travels abroad for vacation, but has planned to get married to a US citizen shortly after the vacation, no longer needs to fear being found to have willfully misrepresented his  or her intentions at the time of admission. Although (iii) contemplates marriage to a US citizen and taking up residence in the United States thereafter, it could encompass other scenarios, such as a student filing an adjustment of status application, based on an approved  I-140 petition with a current priority date, after returning from a brief trip overseas.

This welcome change appears to acknowledge an inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g.Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent).

Such inherent dual intent as established in Matter of Hosseinpour is also applicable to one who enters the United States in B status too, but the B nonimmigrant still seems vulnerable to a charge of fraud or misrepresentation based on conduct inconsistent with what was represented to the consular or DHS officer. Still, there are other positive and sensible changes in the FAM that apply to all nonimmigrants, especially in the  preceding section at 9 FAM 302.9-4(B)(3)(g)(1). For ease of reference, the entire section is reproduced below with the changes reflected in Red Italics.

(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

  1. (U) In General:
    1. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    2. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    3. (U) The fact that an alien’s subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien’s intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States, please see paragraph (2) below.

(U) Note: The case notes must reflect that, when applying for admission into the U.S. or for a visa, the alien stated either orally or in writing to a consular or immigration officer that the purpose of travel was consistent with the nonimmigrant visa class sought.  (For example: “The officer finds that the applicant told the officer at the port of entry that his purpose of travel was consistent with the visa class held.”)

 

The heading of 9 FAM 302.9-4(B)(3)(g)(1) now reads “Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status” thus suggesting more discretion and leeway before a consular officer jumps to the conclusion that the application misrepresented his or her intention.  Notwithstanding the 90 day period, so long as one initially entered the United States with the intention that was consistent with the visa status, such as to visit the US for tourism, in B-2 status, but then genuinely changed one’s mind and got married to a US citizen within 90 days, the presumption of misrepresentation can be rebutted if it can be demonstration that the intent at the time of admission was consistent with the B-2 status. The guidance goes onto further state that even if the conduct was inconsistent to what was previously represented to the consular or DHS officer,  there should not be an automatic presumption of fraud or misrepresentation. Consular officers are not permitted to go along with a hunch or mere suspicion, the FAM cautions. Rather, consular officers must adopt the reason to believe standard: “To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).”  “Probable cause” is generally associated with a reasonable ground to believe that the accused is guilty, see e.g. Ludecke v. United States Marshall, 15 F.3d 496 (5th Cir. 1994).   Thus, the implementation of “probable cause” gives more room for an applicant to rebut an accusation of misrepresentation.

Finally, the insertion of  “engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status” appears to be in harmony with prong (iv) of 9 FAM 302.9-4(B)(3)(g)(2). Prong (iv) says the same thing: “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.” As I had suggested in the prior prior blog, the applicant should only be penalized if he or she engaged in activities without applying for a change of status or adjustment of status. Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30thday, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the prong (iv) criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. Also, since the salutary change for students in the FAM guidance is for consular officers, a Customs and Border Protection (CBP) officer at the airport may not be guided by it, and may not even know about it. Thus, a foreign student who has resided in the United States for several years coming back from a brief weekend trip from Canada could still be suspected for misrepresenting his or her intentions as a nonimmigrant if there is a plan to marry a US citizen and adjust status in the US.

It is hoped that the change in the FAM guidance benefitting foreign nonimmigrant students will guide USCIS and CBP too. It makes little sense to penalize a bona fide foreign student who plans to marry and adjust status just because of a short vacation overseas. The inherent dual intent wisely recognized by the Board of Immigration Appeals in all nonimmigrant visa categories in Matter of Hosseinpour ought to be part of guiding policy for all the agencies administering the Immigration and Nationality Act. One who enters the United States as a nonimmigrant to pursue the objectives of the visa, but who also desires to immigrate, should not be viewed in the same way as one who commits blatant fraud. Nonimmigrants should be allowed to follow their destiny as it naturally unfolds in the United States without having to worry about being accused of engaging in inconsistent actions within 90 days of their admission.

Cyrus Mehta

A Few Suggestions To Defend Oneself Against A Misrepresentation Finding Under The 90-Day Rule

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By Cyrus D. 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 updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

    1. Engaging in unauthorized employment;
    2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
    3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
    4. Undertaking any other activity for which a change of status or an adjustment of status would be requied, without the benefit of such a change or adjustment.

This amendment replaces the former 30/60 day rule, which still exists in the USCIS policy manual, but is likely to be replaced. Under the 30/60 day rule, if a foreign national filed an adjustment or change of status application within 30 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions. If the conduct happened more than 30 days but less than 60 days after entry, no presumption of misrepresentation arose, although the government could infer from the facts that there was an intent to misrepresent. 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. Still, like under the old guidance, the key issue is what the intention of the person was at the time of issuance of the visa or at the time of admission into the United States. If they were inconsistent at those points in time under the applicable visa, then it does not make a difference whether there is a 30-day or a 90-day rule. 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. If such a person is admitted into the United States and gets married to a US citizen, that conduct in itself should not be inconsistent with one’s admission into the United States as a visitor. But if this person files an application for adjustment of status within the 90-day period, it could be presumed that this person misrepresented his or her intentions at the time of admission into the United States. The same reasoning would apply to someone who is admitted on a B-2 visa for six months, and if within 90 days, this person contacts a school, gains admission and files a change of status from B-2 to F-1.

Even if there was allegedly inconsistent conduct within the 90 days, there are ways to rebut the presumption. 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. 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 guidance at 9 FAM 302.9-4(B)(3)(h) insists that “there must be evidence that, at the time of the visa application, admission into the United States or in a filing for an immigration benefit (e.g., an application to change or extend stay in nonimmigrant status), the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was inconsistent with intended nonimmigrant visa classification.” If the government is unable to establish that there is evidence of an admission to a consular or immigration officer that was made orally or in writing, then that would be grounds to argue that there was no misrepresentation.

The FAM guidance also explicitly instructs the consular officer that “[y]ou must give the alien the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” Thus, if the applicant can demonstrate that it was not her intention to apply for adjustment of status at the time of her admission to the United States, but she changed her mind after her entry, that could be a basis to rebut the presumption. A good example is an elderly parent of a US citizen who genuinely comes to the United States to visit, but then has a medical emergency that impedes her ability to travel, which renders adjustment of status more convenient than consular processing. Another example is someone who is dating a US citizen, and visits the United States to pursue that romantic interest. There is no intention of getting married at the time of her entry in the United States. 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.

Also, a misrepresentation must be both willful and material. INA § 212(a)(6)(C)(i). A misrepresentation is material under INA § 212(a)(6)(C)(i) when it tends to shut off a line of inquiry that is relevant to the alien’s inadmissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa or other benefit. See Matter of D-R–, 27 I&N Dec. 105 (BIA 2017). If the applicant can establish that the misrepresentation was not material, then that too would be a defense against a misrepresentation finding. Such an instance may include an Applicant who works for ABC Company in their home country but misrepresents that he works for XYZ Company, because ABC Company is not willing to issue him a letter, and so he obtains a false letter from XYZ. Such a misrepresentation is not material as the Applicant was in any event working in the home country and can show ties. Moreover, if the misrepresentation is not willful, but an innocent misrepresentation, it should not result in a finding of inadmissibility under INA § 212(a)(6)(C)(i). Cf.  In re Guang Li FU, 23 I&N Dec. 985 (BIA 2006).

The 90-day rule will clearly not apply to people who enter the United States under visas that allow for dual intent. Therefore, one who enters the United States in H-1B or L classification would not be implicated if he files an application for adjustment of status within 90 days as there is a clear carve out for H and L visa applicants in INA § 214(b). Dual intent is also recognized by regulation for the O, P and E visa categories. See 9 FAM 402.13-10(B) citing to 9 FAM 402.13-5(C) (“‘dual intent’ is permissible for O-1 visa holders”); 9 FAM 402.14-10(C) (“the approval of a permanent labor certification or the filing of an immigrant visa petition for an alien shall not be a basis for denying a P petition”); and 9 FAM 402.9-4(C) (“an [E visa] applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf.”) However, in the O, P, and E visa categories, while there is no requirement that they maintain a foreign residence, the intent to file an adjustment of status application at the time of entry may still not be contemplated.

Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even to the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1).

Finally, with respect to preconceived intent being a discretionary ground for granting or denying adjustment of status, the BIA has held that an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intent to remain. Matter of Ibrahim, 18 I&N Dec. 59 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215 (1980).

The FAM does not have the force of a statute or a regulation. It is sub-regulatory guidance and is not binding. An inadmissibility finding based on an arbitrary 90-day rule in the FAM, or if adopted by the USCIS in its policy manual, will not be binding upon an immigration judge and will not receive Chevron deference in federal court, but the lower deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under Skidmore, the weight given to the new 90-day rule in the FAM “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” An abrupt and arbitrary change from 30 to 90 days, without regard to other countervailing factors that militate against misrepresentation, may not even get Skidmore deference in federal court.  While it is always advisable to be cautious and avoid risks that would result in an inadmissibility finding based on misrepresentation, it is incumbent upon the immigration practitioner and applicants to analyze whether such an inadmissibility finding could be imposed if there was a change in intention after the fact or if no oral or written representation was made to a governmental official. This analysis is more crucial than buckling to an arbitrary 90-day presumption of misrepresentation period.

(This blog is for informational purposes only, and must not be considered as a substitute for legal advice)