New Department of State Rules Channel Trump: The 90 Day Rule and Hire American
US embassies and consulates abroad adjudicate more than 13 million visa applications a year, so when changes are made to the rules governing visa decisionmaking, the potential impact can be enormous. That is the case with two recent changes in the Foreign Affairs Manual, the State Department’s guidance to consular officers making visa decisions. The revisions, unfortunately, are not for the better for visa applicants.
90 Day Rule
The most important change – with the most severe potential consequences – relates to the pronouncement of a new 90 day rule. This rule supplants the previous 30/60 day guidance. The 90 day rule states that “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry,” the consul may presume that the “applicant’s representation about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” The FAM goes on to specify the four triggering events for the application of this presumption: 1) engaging in unauthorized employment; 2) enrolling in a course of academic study not permitted by the current status; 3) marrying a US citizen or legal permanent resident and taking up residence in the US while holding a B, F or other visa type which prohibits immigrant intent; and 4) engaging in any other impermissible activity without undertaking a corresponding change or adjustment of status.
It is obvious that this new rule is a byproduct of the anti-immigrant and pro-enforcement undercurrents sweeping Washington. The Department of State is fighting back against perceived abusers of the visa system. But there is hope: the “rule” is only a presumption – it is not airtight and its application by a consul to an individual applicant must be cleared with the Visa Office. Further, because the presumption is not ironclad, it can certainly be challenged by applicants. For example, it is not clear whether: 1) it will also be applied by USCIS; 2) it may be applied in the absence of proof of an actual willful, material misrepresentation made to a US government official; 3) its potential application will be more likely to be forgiven in the context of an adjustment of status application of an immediate relative of a US citizen; and 4) courts will defer to this rule.
Of course, those in the United States will be – and should be – reluctant to leave the US to test the 90 day rule at a consulate. In fact, instead of encouraging many people to return to their home countries and maintain their ties – the prerequisite for the issuance of a B or F visa – the Department of State may end up achieving the opposite: compelling individuals to stay in the US until they become permanent residents or do not need a visa for re-entry (e.g., receive advance parole). Whereas before many of these returnees to their home countries only risked a 214b refusal, now they may be subjected to a 6C misrepresentation decision – with a lifetime ban from the United States.
A second change relates to the context in which a consular officer will review certain employment visa applications. With the Trump Administration’s emphasis on hiring Americans and its issuance of a corresponding executive order in April, the State Department revised the Foreign Affairs Manual to reflect this emphasis. Specifically, when reviewing H, L, O and P visa applications, consular officers are now instructed to consider the impact on US jobs:
On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788, intended to create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that [H, L, O, and P visa] cases must be adjudicated.
Already, some “patriotic” consuls have seen fit to treat such visa applicants with added rigor and skepticism. However, such autarkic zeal should remain subservient to the law and USCIS’ preeminent position in the H, L, O, and P petition-based landscape, i.e., USCIS petition approval is prima facie evidence of qualification and a consul may only recommend an approval for revocation in the case of fraud or the discovery of new, material evidence.
For E visa applicants, on the other hand, there is no such hierarchical order or buffer in place because there is no underlying approved petition to defer to; it is the Department of State with jurisdictional preeminence. Thus, E applicants are particularly vulnerable to the temperament of the consular officer in this politically turbulent environment. In any event, the unintended impact of these “US worker first” provisions will almost certainly be adverse. By denying employment visas to certain foreign individuals, Americans will lose resultant direct and indirect jobs that would have been created had the visas been issued.
As one can see, visa applications at US embassies and consulates outside the United States are becoming more and more fraught with potential problems. One should tread lightly in this legal minefield – and consider obtaining legal assistance before making an application or considering a return to the home country. Please feel free to contact us to discuss your situation.