The United States Department of State (US DOS) recently released a policy change to its Foreign Affairs Manual (FAM). Going forward, any visa holder who engages in conduct inconsistent with the terms of his/her visa within 90 days of entrance to the US is presumed to have willfully misrepresented him or herself to the Consular Officer at the visa application interview and/or to the Border Officer when entering the US.
Conduct that violates or is inconsistent with status, may include:
- Engaging in unauthorized employment
- Enrolling in a course of study if study was not authorized for that classification (e.g. Entering the US in B1/B2 status and taking classes before 90 days)
- Marrying a US Citizen or lawful permanent resident (green card holder) and taking up residence in the US.
Non-immigrant intent is required for most visas -- with a noted exception for those holding H-1B and L-1 status. Individuals entering the US on other types of visas, for example an F-1 student visa, a TN or E work visa, or a B-1/B-2 tourist visa, must have the intent to return to their home country at the end of their authorized period of stay in the US.
Other than H-1B and L-1 visa holders, Individuals entering on a visa should wait at least 90 days after entrance to the US before taking any steps toward a green card application.
The previous US DOS policy indicated actions inconsistent with status taken within 30 days of entry were presumed fraudulent and actions inconsistent with status taken between the 31st and 60th day after entry were presumed fraudulent, but the presumption could be overcome.
We recommend that you consult with your MU attorney before making any international travel plans, no matter your status.