By Farhad Sethna, Esq. ©2017
The US Department of State has revoked its 30/60 day rule regarding immigrant intent. What does this mean?
As background, the 30/60 day rule was as follows: if a nonimmigrant tried to convert to an immigrant status or another nonimmigrant status within thirty days of entry to the USA, it would be considered prima facie evidence that the nonimmigrant had lied at the time of the visa application concerning his or her nonimmigrant intent. Likewise, if the nonimmigrant attempted to convert to an immigrant status within thirty days of entry to the USA, it would be presumptively concluded that the nonimmigrant had lied about his immigrant intent when making the visa application.
If the nonimmigrant applied for a change of status or a immigrant visa between thirty to sixty days of entry, the nonimmigrant was allowed to have a “rebuttable presumption” that he or she had fraudulent intent at the time of the visa application. Simply put, this means that the State Department would accuse the nonimmigrant of having a fraudulent intent, and the nonimmigrant would then have to somehow show that circumstances had changed, or there was some other facts, NOT present at the time when he or she applied for the non-immigrant US visa, which required his or her change of status or application for the immigrant visa. The Department of State or the USCIS would then determine whether that change in circumstances was sufficient to grant the requested change in classification or the immigrant visa or not.
Generally, after sixty days of entry to the USA, a nonimmigrant could apply for either a change of status or adjustment of status without the risk of being denied or questioned as to imputed fraudulent or immigrant intent.
That having been said, the Department of State has revoked the 30/60 day rule. Now, if a nonimmigrant either attempts to change status to that of another non-immigrant category or applies to change status to that of an immigrant (for example, through marriage to a US citizen) within 90 days of entry to the USA, the Department of State will presumptively conclude that the nonimmigrant lied or made misrepresentations at the time of their application for a visa. In other words, they already had the immigrant intent, or the intent to convert to a different nonimmigrant status, and nevertheless concealed that intent at the time of the nonimmigrant visa application.
This immigrant intent may be considered in at least four circumstances, which remain the same even though the rule has changed. These four circumstances (not an exhaustive list) are:
• Engaging in unauthorized employment;
• Enrolling in a full course of academic study without authorization and/or the appropriate change of status;
• A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States.
• Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.
How does this apply to someone who may have a pending application for adjustment of status (say, as in the above example, though marriage to a US citizen spouse?)
The answer is simple. Let’s say, for example – if the nonimmigrant marries a US citizen within ninety days of entry, and thereafter applies for permanent residence as the spouse of a US citizen, the Department of State will presumptively conclude that the nonimmigrant lied about his or her immigrant intent at their initial visa application.
USCIS is not bound by the DOS’ rules. Using the above exxample, if the marriage took place within the ninety days, it is highly likely that the USCIS will question the bonafides and the intent of the nonimmigrant at the time of the application for the visa interview. It will also delve deeper into the relationship between the two parties. It will also delve into any proof that the nonimmigrant may provide to the reasons for the change in his or her intentions after entering the USA.
Furthermore, if the nonimmigrant does successfully change status, the next time the nonimmigrant leaves the USA, it is possible that the nonimmigrant may be denied a visa to reenter the USA. This is especially dangerous and difficult for a nonimmigrant, because a simple application for a change of status- say from a B-2 Visitor to an F-1 student-may trigger this future inadmissibility.
If a visa officer believes that immigrant intent may be inferred from a nonimmigrant’s prior behavior, the visa officer does not even need to give the nonimmigrant a chance to explain. The visa officer can simply deny the application and refer the application to the visa office for an advisory opinion.
Given these harsh changes in the rules, it is very important for a nonimmigrant to consider their intentions carefully, document their application, and if necessary, seek competent legal advice prior to making an application for a nonimmigrant visa at a consulate overseas, applying for a change of status in the USA, or applying for Adjustment of Status in the USA.
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible