In the US, complicated the procedure for changing immigration status

Фото: Depositphotos

If you change your status of staying in the US for 90 days after entering the country, border and immigration services will now consider this a fraudulent act. 1 September 2017, the US State Department updated the rule with the official name 9 FAM 302.9-4 (B) (3)concerning the “inconsistency” between the type of visa received by a non-immigrant and his actions upon arrival in the United States.

Edition Wolfsdorf explained all the details of the new solution.

This decision introduces new FAM guidance for US immigration officers on what may be considered intentional misrepresentations when applying for a US visa or other document to enter the country.

The new manual contains a section called “Inconsistent Behavior During 90 Days After Entry”, which states: “If a foreigner takes actions incompatible with his or her nonimmigrant status, within 90 days after the United States enters, it should be understood that the data provided for obtaining a visa or status were intentionally distorted with the intention of being able to enter the United States.”

If an immigration officer “determines that an alien present in the United States on a valid visa has misrepresented his or her intent at the time of visa application, port of entry, or immigration application,” the officer must “provide that information to the Department internal security for possible visa revocation.”

This can have very serious consequences. Section 212 (a) (6) (C) of the Immigration and Citizenship Act states that any foreigner who, by deliberately distorting a material fact, tried to obtain a visa, other documents upon entering the US or any immigration privileges, can be for life prohibited from entering USA.

Accordingly, immigration lawyers and foreigners visiting the United States, it is very important to understand the new rules.

Briefly the essence of the changes in his blog outlined immigration lawyer Natalya Polukhtin.

“Until today, any action by a non-immigrant not consistent with the declared visa category and made within the first thirty days after entry was considered as deliberate deception of the border officer. For example, if you enter on a tourist visa and two weeks later apply to change your status to a student, immigration services may naturally conclude that the tourist, in fact, had education as his goal, and, accordingly, used a visa of the wrong category for entry. If one enters on a work visa, immediately marries a U.S. citizen, and applies for residency by marriage within the first month of entry, the officer must conclude that there has been deception regarding the true purpose of entry. If actions inconsistent with the visa category were committed 60 days after entry, the immigration officer operates with the presumption that the applicant's plans changed naturally, so there is no deception. Anything between 30 and 60 days leaves room for interpretation. That’s why this principle was called the “30-60 rule,” the lawyer explained.

The new FAM leadership, according to her, can be called the “90 rule”.

“Any action not consistent with the category in which the non-immigrant crossed the border, committed within 90 days of entry, is now interpreted as a violation of status and deception of immigration officials. The wording of the rule includes such actions as working without permission, enrolling in an educational institution, getting married, and - best of all - “any actions that could become the basis for a change of status, even if an application for a change of status has not been submitted.” As always, I expect the most widespread use of the last, generalizing point,” she explained the essence of the innovation.

Five key things you need to know about the new FAM guide:

1. Inconsistent behavior

Behavior that violates or contradicts the non-immigration status of foreigners includes:

• Work without a permit;
• Registration for courses or other studies in the United States, if this is not permitted by the visa received;
• Marriage with a citizen or permanent resident of the United States and filing an application for residence in the country, if the entrance to the country was carried out on a tourist, student or any other visa that does not provide for further obtaining immigration status;
• Perform any other activities for which a status change or adjustment is required, even if the application for these changes has not been submitted.

2. The presumption of willful distortion is based on the timing

The new FAM guide establishes a presumption of deliberate distortion of data when applying for a visa, if the foreigner's activity contradicts the obtained status within 90 days after entering the United States. In such a case, the burden of proving innocence falls on the foreigner, who must prove that his behavior and actions during this 90-day period were permissible according to his nonimmigrant status.

Consular officials must provide the alien with an “opportunity to rebut the presumption of deliberate misrepresentation of information by presenting evidence to refute it”.

On the other hand, if a foreigner takes actions incompatible with his non-immigration status more than 90 days after entering the United States, the presumption of deliberate distortion does not take effect, although immigration officials can still cancel a visa if they can collect “evidence, logically confirming that the foreigner had distorted the purpose of his trip at the time of applying for a visa. ”

3. What happened to the “30-60” rule, and can the new FAM guide have the opposite effect?

The updated guide has abolished the previous “30-60” rule regarding post-entry nonimmigrant status adjustment.

The rule 30 / 60 acted as follows:

• A foreigner who has applied for status adjustment within 30 days after entry automatically faces a presumption of deliberate misrepresentation of information and intentions when applying for a visa. As a result, the person could be expelled from the country with a life ban on entry into the United States.
• If the application for a status change was submitted in the period from 30 to 60 days after entry, there was no presumption of deliberate distortion of information. However, if the officials had logical arguments and facts proving a possible distortion, then the foreigner had to submit counter evidences.
• If an application for a status change occurred more than 60 days after entry into the United States, as a rule, officials believed that there were no grounds for suspicion of deliberate distortion of information upon entry.

On page about USCIS policy The “30-60” rule has not yet been replaced, but this may happen in the near future. The FAM does not mention the retrospective application of the new manual, but indicates that it came into force on September 1 of 2017. Therefore, foreigners who rely on the former “30-60” rule, have submitted applications for status adjustments and are awaiting a decision, it is worth consulting with an experienced immigration lawyer to draw up a plan for further action.

4. Be careful when applying for status adjustments.

The new leadership also suggests that the Department of State will check in foreigners who entered the United States under the program Visa Waiver (it allows travel to the United States to citizens of some countries for tourism or business for up to 90 days without first obtaining a visa), as well as those who entered on a B-1 / B-2 visa, and applied for permanent resident status.

Foreigners who entered the United States on a B, F or any other nonimmigrant visa, which does not allow further immigration status, should consult with lawyers about the risks of applying for an adjustment, extension or change of status within 90 days after entry. Moreover, even if such applications are filed after the 90 days have elapsed, a foreigner may be required to prove that a specific event occurred that he did not expect and did not plan, requiring a change in his immigration status.

5. Is applying for an immigrant visa the best option

Despite the fact that USCIS has not yet introduced new DOS leadership into work, and it is not yet clear whether the Service intends to do this, it is becoming more attractive to obtain the status of permanent US resident through consular offices abroad than to apply for a status change while in the territory The United States, especially given that USCIS extends the rule of conducting personal interviews for applicants who wish to change their immigration status. Depending on the circumstances of the case, it may be advisable to withdraw the application for status adjustment and submit an I-824 form that will allow you to redirect the application for an immigration visa to a US consulate abroad.

Read also on ForumDaily:

17 countries difficult for Americans

Emigration to the United States along a religious line

What questions can you ask at the border, if you often fly to the USA

What you need to know about a US visa

How to get a visa in the United States after refusal

Do you want more important and interesting news about life in the USA and immigration to America? — support us donate! Also subscribe to our page Facebook. Select the “Priority in display” option and read us first. Also, don't forget to subscribe to our РєР ° РЅР ° Р »РІ Telegram  and Instagram- there is a lot of interesting things there. And join thousands of readers ForumDaily New York — there you will find a lot of interesting and positive information about life in the metropolis.