Construction Law

The Immigration Corner: Nonimmigrant Intent and Conduct Inconsistent with Status – Part 2

Two terms that commonly get thrown around with regard to U.S. visas are Nonimmigrant Intent and Conduct Inconsistent with Status. This is particularly true if you have ever attended an interview at a U.S. Embassy or Consulate or if you have been taken to secondary processing when entering the U.S. Both apply to visas issued by U.S. Department of State (DOS) and status granted by U.S. Citizenship and Immigration Services (USCIS). Each can lead to the revocation of any visa issued by DOS or status granted by USCIS. It is important to understand these two terms and their effects on your plans in the U.S. so that you can avoid the dreaded revocation of your visa. A visa revocation can have repercussions for many years after the fact and could become a barrier to future U.S. entries and visas. This article is part two of a two-part series and will focus on Conduct Inconsistent with Status.

What is Conduct Inconsistent with Status?

When a nonimmigrant enters the U.S., he or she needs a valid visa in order to be permitted to enter the U.S. Upon entering, the nonimmigrant has an electronic tracking form created for him or her, called an I-94, whereby the nonimmigrant is given a status pursuant to the visa presented at the time of admission. This status is what allows the nonimmigrant to remain in the U.S. and dictates the terms that the nonimmigrant must abide by in order to maintain that status and remain legally in the U.S. Conduct Inconsistent with Status is engaging in conduct and/or activities that is not authorized by the nonimmigrant’s status. There are several common examples of Conduct Inconsistent with Status:

• Enrolling in a course of academic study or enrolling your children in school while in the U.S. with B-2 tourist status;
• Working for a different employer other than what is printed on the visa;
• Marrying a U.S. citizen or lawful permanent resident and applying for adjustment of status to lawful permanent residence;
• Applying for a green card through another classification;
• Engaging in unauthorized employment;
• Applying for a change of status or adjustment of status to lawful permanent residence within a certain time after being admitted into the U.S.

The U.S. government is trying to prevent individuals from being admitted with one type of status and engaging in activity that is not authorized by that status.

What was the 30/60 day “rule” and what is the 90 day “rule”?

Conduct Inconsistent with Status comes into play when an individual seeks to change his or her status in the U.S. to another status, adjust his or her status to lawful permanent residence (apply for a green card), or apply for a nonimmigrant or immigrant visa and when the individual previously was admitted to the U.S. with a particular status.

USCIS used to informally apply the 30/60 day guidance in order to determine whether you engaged in Conduct Inconsistent with Status. The guidance was formally adopted by the U.S. Department of State (DOS), the federal agency responsible for the issuance of visas abroad. That guidance applied certain time limits to engaging in Conduct Inconsistent with Status and depending on when the conduct was engaged, different determinations were reached regarding misrepresentation. The guidance was as follows:

• If you engaged in the inconsistent activity within 30 days of entry of the U.S., there is a presumption that you misled the consular officer with your visa application;
• If you engaged in the inconsistent activity between 30 and 60 days after entry of the U.S., there is a rebuttable presumption that you misled the consular officer of your visa application;
• If you engaged in the inconsistent activity after 60 days of entry of the U.S., there is no presumption that you misled the consular officer with your visa application.

The DOS guidance has since been modified to state that any inconsistent activity occurring within 90 days of entry into the U.S. will carry a presumption that you misled the consular officer with your visa application, and anything that occurs after 90 days of entry into the U.S. will not have that presumption. USCIS has not adopted the guidance per se and does refer to the guidance as non-binding, but the current policy manual does incorporate many of the same analysis the DOS guidance asks of its officers.

Why is this change in guidance important?

The new DOS guidance has extended the time period for which you must engage in activities that are only consistent with your visa. Under the old guidance, you could engage in activity inconsistent with your visa after 60 days and even if it occurred between 30 and 60 days, it probably would not have caused an issue. Now, any activity inconsistent with your visa within 90 days of entry will be treated as a misrepresentation by DOS and most likely will lead to future denials of visas by DOS. More importantly, since USCIS incorporates a similar analysis, the same applies in the U.S. when trying to change your status to another nonimmigrant status or adjust your status to lawful permanent residence.

For those seeking to change from B-2 tourist status to F-1 student status, any non-tourist activity in furtherance of obtaining F-1 status, such as enrolling in a school, that occurs within 90 days of entry into the U.S. has been deemed conduct inconsistent with status and has led to the denial of the change of status applications and sometimes the revocation of the B-2 tourist visa. Similarly, those who apply for family-based green cards within 90 days of entry will most likely have their applications denied for engaging in Conduct Inconsistent with Status.

Who has this change impacted the most?

This new guidance by DOS and unofficially incorporated by USCIS as policy has had an impact on all individuals that enter the U.S. with one status and seek to change to another or adjust to lawful permanent residence. However, this policy has impacted individuals entering with tourist status the most. In many change of status cases, the individual enters the U.S. as a tourist and is seeking to change his or her status to another nonimmigrant status. This has been a popular strategy since most people already have a tourist visa or can easily obtain one, compared to other visas. This allows these individuals to come to the U.S. to establish the groundwork for a change to another status instead of having to do so from abroad and apply for a change of status in the U.S., which is a more favorable forum for adjudication than the U.S. Embassy or Consulate.

Under the current policy, the conduct of filing a change of status within 90 days of entry has usually been deemed to be inconsistent with the tourist status and the rationale behind this determination is that the individual never really has the intention of being a tourist if, within 90 days of entry, he or she tries to change to another status. Any such change of status applications will be denied.

Helpful Tips

Here are some helpful tips and considerations to be mindful of:

1. If you come to the U.S. as a tourist, you must engage in tourist activities for at least the first 90 days that you are here and you should not file a change of status or an adjustment of status application within the first 90 days of entry.
2. If you need to or plan to file a change of status application within the first 90 days of entry, you should consider applying for the proper visa at the U.S. Embassy or Consulate in your home country instead.
3. Do not get married within the first 90 days of entry, with the exception of someone entering with a fiancé visa.
4. If you visit schools while in the U.S. as a tourist, your conduct will not be deemed Conduct Inconsistent with Status, regardless of when you do so, so long as you do not start the enrollment process.

Since USCIS does not have official guidance on the issue, this leaves room for interpretation and can create a grey area. It is important to speak with an experienced immigration attorney before seeking an immigration benefit or if you have any questions about your current or proposed conduct or activities.

Attorney Paul Messina focuses his practice on all aspects of employment-based, investor-based and family-based immigration law. He has extensive experience in proceedings before United States Citizenship and Immigration Services (USCIS) and the Consular Section of the United States Department of State. He has handled a variety of immigration cases, including employment-based green cards, EB-5 investment-based green cards (direct and through regional centers), and many of the non-immigrant visa/status categories as well as family-based green cards.

Author’s note: The Immigration Corner presents current and relevant topics in immigration law. The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.