A number of times I would get a call from a client saying that he or she entered the U.S. a month or so ago on a visitor visa and now wants to register for school and file for a change of status to a student visa; or get married and immediately file for adjustment of status; or a foreign mom or dad who entered on a tourist visa and their U.S. citizen son or daughter had convinced them to remain in the country and now wants to quickly file for adjustment of status soon after entry.

Previously, I would advise them that under the 30/60 day “Rule” from the U.S Department of State (DOS) Foreign Affairs Manual (FAM) found in section 9 FAM 302.9-4 (B)(3), when a person enters the U.S. on a visitor visa, and within 30 days enrolls in a program of academic study, starts working, marries and takes up permanent residence, or undertakes any activity for which a change of status or adjustment of status would be required, a DOS or a USCIS officer “may presume that the applicant misrepresented his or her intention in seeking a visa or entry”. If the activity occurred between 30 and 60 days of entry it was not presumed to be a misrepresentation but gave rise to a “reasonable belief” of misrepresentation subject to rebuttal, and if the activity occurred after 60 days, it was not subject to the presumption. Hence, my advice always has been to better wait at least 60 days after entry before taking any action inconsistent with the non-immigrant status sought at entry.

Starting with visa adjudications that occur after September 01, 2017, section 9 FAM 302.9-4(B)(3) of the FAM has been changed to a 90-day rule, which means that if a non-immigrant alien engages in any activity for which a change of status or adjustment of status would be required, within 90 days of entry into the U.S., the conduct would be presumed to be a willful misrepresentation of the individual intention when he/she sought a visa or entry, and the alien would then have to rebut the presumption by proving that “his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

The change to the new 90-day rule was made without any period of prior public comment; consequently, it is more likely than not that the broadening of the rule without prior announcement will impact a larger number of individuals had the change been properly publicized prior to entering into effect.

Individuals in a non-immigrant status that prohibits immigrant intent should take note that for purposes of applying the new 90-day rule, the conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to:

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 required, without the benefit of such a change or adjustment.” 9 FAM 302.9-4(B)(3)(g)(2)(b).

Although, USCIS has not yet updated its Policy Manual to consider the change to the 30-60 Day Rule of the FAM to the new 90-day Rule, and that under section 8 of the USCIS Policy Manual, Part J, Chap.3, A,3, USCIS treats the FAM rule simply as “an analytical tool that may be helpful in resolving in a particular case whether a person’s actions support of finding of fraud or misrepresentation”, the change to the new FAM 90-day Rule puts at risk certain nonimmigrants – such as visitors, students, visa-waived nationals, and others who are not entitled to a dual nonimmigrant and immigrant intent when applying for a visa or immigration benefit – who engage in any activity within a 90-day period of entering the United States that is inconsistent with the non-immigrant classification under which they entered the country, as this would be presumed to be a willful misrepresentation of the individual’s intention when he/she sought a visa or entry.