ADVOIDING IMMIGRATION FRAUD – WHAT ELIMINATING THE 30/60 DAY INTENT RULE MEANS FOR YOUR CLIENTS-ADVOIDING IMMIGRATION FRAUD – WHAT ELIMINATING THE 30/60 DAY INTENT RULE MEANS FOR YOUR CLIENTS-【移投策】

ADVOIDING IMMIGRATION FRAUD – WHAT ELIMINATING THE 30/60 DAY INTENT RULE MEANS FOR YOUR CLIENTS

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2017-09-30

It is important to consider your clients’ immediate and long term plans when determining whether the client will apply for permanent residency at a consulate abroad or enter the United States and file for adjustment of status. While the latter was previously a somewhat common practice, in light of recent rule changes it could incur serious consequences for the client.

WHAT CHANGED ON SEPTEMBER 1ST?

On September 1, 2017 a new rule came into effect for individuals entering the United States on a nonimmigrant visa which does not allow the individual to possess intent to become a permanent resident, such as a B-1/B-2. This new rule replaces an old rule which presumed an individual commits fraud if the individual first entered the United States on such a visa and then engaged in an action which expressed intent to immigrate within the first 30 days after entering the country, but effectively allowed such activity 60+ days after entry. This action might be filing an I-140 petition for an immigrant visa, filing an I-485 adjustment of status, engaging in unauthorized employment, or even non-immigration specific actions such as marrying a U.S. citizen and taking up residence in the U.S.  

WHAT ARE THE CONSEQUENCES OF MAKING A WILFUL MISREPRESENTATION OR COMMITTING FRAUD?

The consequences of committing immigration fraud or making a willful misrepresentation are severe, the individual will not be allowed to procure the requested visa, documentation, admission or other benefit. The chart below compares the two rules.

Consequence

Old Rule

New Rule

Presumed Fraud: officer may immediately initiate potential revocation.

Inconsistent conduct within 30 days of entry

Inconsistent conduct within 90 days of entry

No Presumption of fraud:

officer may initiate potential revocation if they have a reasonable belief the applicant committed fraud.

Inconsistent conduct after 30 days but within 60 days of entry

Inconsistent conduct more than 90 days after entry

No presumption of fraud:

officer may not initiate potential revocation for misrepresentations or fraud.

Inconsistent conduct after 60 days of entry

No longer available


WHAT DOES THIS MEAN FOR YOUR CLIENTS?

When visiting the United States clients should be careful to only engage in activities consistent with their visa status. Where the prior rule effectively allowed individuals to change their minds after 60 days and apply to become a permanent resident without any risk of inquiry into potential misrepresentations or fraud at the consulate or port of entry the new rule extends the required time  to 90 days and, even then, allows for investigation if the officer believes there is any cause for suspicion. International clients with no existing U.S. employer to sponsor a visa allowing for immigrant intent should carefully discuss their immigration goals with an attorney and arrive at a comprehensive plan which is compatible with both their goals and U.S. immigration law. The temporary inconveniences of obtaining U.S. permanent residency through the consular process abroad are minor in comparison to the consequences of being found guilty of making a willful misrepresentation to the U.S. government. 


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