NOTE: As of September 1, 2017, the U.S. Department of State replaced the 30/60 Day Rule with the 90 Day Rule which establishes a presumption of a willful misrepresentation in the event that an alien takes any action within 90 days of entry that is inconsistent with the terms of his or her nonimmigrant status on admission. For example, if a nonimmigrant is admitted as a B1/B2 tourist and then within 90 days of entry files an application for adjustment of status, it may be presumed that the nonimmigrant misrepresented his or her intention at the time of the original admission (ie. by representing that he/she was entering as a tourist but really intended to adjust status). Given this new rule, nonimmigrants would be well advised to consult with South Florida Immigration Lawyer Sean D. Hummel before taking any action or requesting any changes to their status which would be inconsistent with the terms of their admission. Moreover, even if action is taken AFTER the expiration of the 90 day period, one should be prepared to explain and demonstrate that there was an actual change in circumstances or plans which led to the decision to take the inconsistent action (even after the 90 days), rather than simply waiting out the 90 day period and filing on day 91, particularly since the new Trump Administration’s aggressive enforcement of U.S. Immigration law is taking on new and unknown dimensions and it remains to be seen just exactly how this rule will be implemented and applied to cases in the future. I will write a separate blog post regarding the 90 Day Rule at a later date. But for now, I want it to be clear that my blog post on the 30/60 Day Rule should be disregarded and not followed, as the 90 Day Rule is now the law of the land.
Foreign nationals who enter the United States should be aware of the 30/60 Day Rule when considering whether to apply for a change of status or adjustment of status shortly after they arrive. In short, the 30/60 Day Rule sets forth certain presumptions about whether a non-immigrant foreign national has acted in bad faith in filing for a change of status (to another non-immigrant category) or adjustment of status (to permanent resident) during the 60 day period after they arrive in the U.S. as a non-immigrant. This Rule is found in the U.S. Department of States Foreign Affairs Manual at 9 FAM 60.63 n.4 and has been adopted by USCIS and applied when a decision is made on an application for a change of status or adjustment of status. The reason that a finding of bad faith is important is that it can serve as the basis for denying the application, thus requiring the foreign national to either depart the U.S. at the expiration of their authorized period of stay, or face removal (deportation) proceedings in the U.S. Immigration Court.
Within 30 Days of Entry.
If a foreign national applies for a change of status or adjustment of status within 30 days of the date that they were admitted as a non-immigrant, USCIS can apply a legal presumption that the foreign national acted in bad faith in filing the application. The reasoning behind the presumption is that the foreign national is deemed to have had a preconceived intent at the time that they were granted their non-immigrant visa (or at the time of entry) to either change their status upon arrival OR immigrate (through adjustment of status) as soon as they arrive in the U.S. Why is this a problem? Because USCIS would take the position that the foreign national effectively misrepresented the purpose of their travel to the U.S. by failing to disclose that they really had no intention of remaining in the status in which they were admitted, as their true intention was to change or adjust status shortly after they arrived. The effect of this presumption is that USCIS does not even have to prove that the foreign national even made a misrepresentation or that they had this preconceived intent in their head. Instead, it is automatically applied and the only thing left for USCIS to do is decide whether, in the exercise of discretion, the presumption should result in the denial of the change or adjustment of status application. As you can imagine, in most cases, the application of this presumption would result in an automatic denial as well.
After 30 Days But Within 60 Days.
If a foreign national applies for a change of status or adjustment of status after 30 days of the date that they were admitted as a non-immigrant but within 60 days, then no presumption of immigrant intent arises. HOWEVER, because the applicant filed so quickly after arriving in the U.S., there will probably be a very strong suspicion that the applicant had a preconceived intent and the case will be carefully scrutinized. if the facts of the case give the USCIS officer a reasonable belief that the foreign national has misrepresented his or her intent, then USCIS can still use this as a basis to deny the application, PROVIDED that the foreign national is given an opportunity to present evidence to the contrary (ie. proving that they did not have immigrant intent at the time of entry and that they just happened to decide to change status or immigrate AFTER they obtained their non-immigrant visa and entered the U.S.). In this instance, the case can go either way and the decision on the application will depend upon the facts, as well as whether the foreign national will be able to persuade USCIS that they did not have pre-conceived intent. The big difference here is that after 30 days but within 60 days, there is still a chance that the foreign national can obtain approval of the application, as the denial is not automatic. It is important to understand that it is always up to the foreign national applicant to prove that he or she is eligible for the whatever US immigration benefits for which he or she is applying. USCIS often cites the case of Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) where the Board of Immigration Appeals held that in visa petition proceedings, the burden of proof to establish eligibility for the benefit sought rests with the petitioner. In this context, this means that the foreign national may be required to prove that he or she did not have immigrant intent at the time the visa was applied for or at the time of entry into the U.S.
After 60 Days.
If the application for change or adjustment of status was filed more than 60 days after entry, the presumption is that the applicant acted in good faith.
Special Rule for Immediate Relatives of U.S. Citizens.
Note, however, that Immediate Relatives of U.S. Citizens who apply for adjustment of status within 60 days of entry are treated differently under the law. Immediate Relatives are defined as children (under 18), parents, or spouses of United States Citizens. In short, preconceived intent cannot be presumed if the applicant/beneficiary is the child, parent or spouse of a U.S. Citizen AND it cannot be the basis for the denial of an application for Adjustment of Status IF it is the only adverse factor. This rule comes from several cases decided by the U.S. Board of Immigration Appeals, including Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), and Matter of Battista, 19 I&N Dec. 484 (BIA 1987). It is important to understand that the holdings of these cases do not mean that the 30/60 Day Rule cannot be applied to immediate relatives, but instead, that it cannot be the only reason that USCIS denies the application, assuming that everything else checks out and the foreign national is otherwise eligible to adjust status. But keep in mind that USCIS has many resources at their disposal and that they can and will investigate cases where there is a suspicion of wrongdoing or evidence that the foreign national actually had preconceived intent to immigrate at the time of entry. If USCIS cannot find actual proof of the preconceived intent, all they need to do is find one good reason to deny the application, in the exercise of discretion, and this can form the basis for a valid denial under the law. Even though USCIS may have a difficult time proving that an Immediate Relative actually had immigrant intent, applicants should give serious consideration to simply delaying the filing of the application for adjustment of status until 60 days after the date of entry in order to avoid the automatic application of the rule.
To schedule a consultation with South Florida Immigration Lawyer Sean D. Hummel to discuss the 30/60 day rule, call (954) 385-3111 or e-mail: firstname.lastname@example.org