Reviewing Major Immigration Law & Action Events in 2019 w/ Attorneys Nicholas Mireles and John Khosravi
Consular/Department of State
(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status
(1) (U) In General:
(a) (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.
(b) (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 (typically you are looking at activities after entry into the United States), please see paragraph (2) below regarding the 90 day rule.
(2) (U) Inconsistent Conduct Within 90 Days of Admission to the United States:
(a) (U) If an alien engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her true intentions in seeking a visa or admission to the United States). You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe he is ineligible 6C1.
(b) (U) Inconsistent Conduct: For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:
(i) (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. (Note: Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's employment activities when make a 6C1 finding under the 90 day rule);
(ii) (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);
(iii) (U) A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States. (Note: to establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, post may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or
(iv) (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment. (Note: Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90 day rule; the alien must also engage in conduct inconsistent with authorized status without the benefit of such a change of status. Moreover, if an alien engages in the activities for which he/she was admitted, such as to study on a F1 visa, but also engages in unauthorized work without seeking an employment authorization document (EAD), then that is insufficient to justify a presumption of a misrepresentation.)
(c) (U) In cases where you are unsure whether a particular activity is inconsistent with nonimmigrant status or whether a violation occurred, you may request an AO from CA/VO/L/A.
(d) (U) A consular manager must review all 6C1 findings of ineligibility under the 90 day rule.
(3) (U) Inconsistent Conduct After 90 Days: If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises. If you determine that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you should apply a traditional 6C1 analysis. See 9 FAM 302.9-4(B).
(2) (U) If you are satisfied that the applicant did not make a material misrepresentation, and the alien is otherwise eligible, process the case to conclusion.