The Department of State and USCIS are cracking down on fraud and/or misrepresentation, particularly on non-immigrant visa applications such as B1/B2 – visitors visas and F-1 – student visas. Fraud and Misrepresentation findings are skyrocketing so you need to be aware of the increased attention being paid to nonimmigrant visas. Misrepresenting your intention on a visitor’s visa, for example, can have drastic effects on future immigration benefits you might otherwise be qualified for. For example, if you inform any Consulate Officer, Department of Homeland Security (DHS) or Customs & Border Patrol (CBP) or Port of Entry Officer that you are coming to the United States to visit, you may be opening yourself up to a fraud and/or misrepresentation finding if you, for example, marry a U.S. Citizen during your vacation stay, and apply to adjust status in the U.S.
In the past, immigration policy on the above scenario was to apply a 30/60 day rule. If you entered on a Visitor’s visa and married a U.S. citizen within 30 days, the presumption was that you married solely for the purpose of an immigration benefit; however, the presumption could be rebutted with adequate evidence of a bona fide marriage. Marriage between 30 an 60 days of entry, followed by application to adjust status, could infer that there was an intent to misrepresent, which also could be rebutted by evidence of a bona fide relationship. After 60 days there was no basis for a misrepresentation finding.
Recently, the Department of State updated its Foreign Affairs Manual (FAM) to state that any conduct inconsistent with representations made on applications, to DHS, CBP or ICE agents, or Port of Entry officer within 90 days, can result in a finding of willful misrepresentation. Inconsistent conduct for a B1 visa holder, for example, would be engaging in unauthorized employment, marrying a US citizen and applying for adjustment of status, enrolling in a course of academic study, or any conduct for which a change of status would be required. This new policy can drastically affect those entering under Visa Waiver Program, where duration of stay is 90 days.
There are waivers available for fraud and/or misrepresentation for eligible candidates under section INA section 212(i). If you are coming to the United States to get married in any other capacity than a valid fiancee visa, you should seek the counsel of a qualified immigration attorney. With the changing immigration policies under this administration, you can avoid a host of problems by speaking to someone who understands the law in this area.