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It’s been echoed since time immemorial: “Ignorance of the law is no excuse”. A vast number of U.S. immigration laws are applied in ways that foreigners find to be completely counterintuitive. For instance, you may be tempted to believe that renouncing your U.S. permanent residence would constitute clear and convincing evidence that you no longer wish to reside in the U.S., thereby enabling you to easily obtain a U.S. tourist visa whenever you need to visit the U.S. in the future. Au contraire, mon frère! Renunciation could actually make subsequent visa applications more challenging for you. The rationale is that the U.S. tickled your fancy once as a place to call home, you did in fact call it home, and an encore may therefore not be off the table.
Similarly, you would think that a visiting international student relying upon the advice of the Designated School Official at a U.S. college or university would at least be an excuse, if not an outright justification, for not being in complete compliance with U.S. immigration law. After all, the DSO designation was conferred on the official by the U.S. Department of Homeland Security itself. Yet, that’s not true either. No sympathy was shown to foreigners who were ensnared by the fake universities created by U.S. Immigration & Customs Enforcement: University of Farmington and The University of Northern New Jersey. It was not an excuse for those foreigners to trust the word of purported university officials, who were actually undercover ICE agents. The same is true of student graduates who were caught up in the fraudulent practices perpetrated by companies, such as Integra and AndCo, with whom the DSOs had signed off on the very post-graduate employment at issue. Last, but not least, relying on verbal guidance from the USCIS National Contact Center, that foreigners who want to immigrate to the U.S. can legally choose to either apply for an Immigrant Visa at a U.S. consular post or covertly enter the U.S. as a nonimmigrant tourist and then apply for permanent residence from within the U.S., can land you in an unenviable plethora of legal troubles. As the expression reads, “Ignorantia juris non excusat!” This recurring problem deserves careful analysis and is the subject of this article.
Technically, if you are a foreigner and are desirous of immigrating to the U.S., you are supposed to apply at the specially designated U.S. Consulate that processes immigrant visas for your country of residence. In Canada, that’s Montreal; in Mexico, Ciudad Juarez; in Italy, Naples; in China, Guangzhou, and so on and so forth. However, a problem arises if you bypass the designated consulate altogether and enter the U.S. as a tourist, only to make an about turn and apply for permanent residence after whipping your luggage off of the carousel and high tailing it out of the airport in your favorite rideshare. Regardless of what anyone tells you, it’s not legal to enter the U.S. on most nonimmigrant visas with the intention of subsequently applying for U.S. residence once inside the U.S.A. (Notable exceptions include E, H, K, L, and O visas). If you attempt to skirt the consulate in this manner, you can be denied a Green Card on the basis that you committed fraud when you entered the U.S.A. This is referred to by lawyers as the “Pre-Conceived Intent” Doctrine.
The U.S. government’s rationale is that had you been honest with U.S. Customs & Border Protection when you entered the U.S., the CBP officer would have known that you intended to apply for U.S. permanent residence upon being given the green light to proceed to the baggage claim area, and the officer would therefore have properly denied you entry to the U.S. instead. This is because CBP officers are prohibited from admitting foreigners to the U.S. if they have the intention of permanently remaining in the U.S. once inside.
However, as is often the case with U.S. immigration law, exceptions abound. Despite the “Pre-Conceived Intent” Doctrine, it’s not illegal for a nonimmigrant visitor to spontaneously decide during a visit to the U.S. that he wants to apply for U.S. permanent residence. This gives rise to an interesting dilemma: How do you separate persons with pre-conceived immigrant intent from persons who spontaneously decided to apply for U.S. permanent residence after having already been admitted to the U.S.? Enter the “30/60/90 Day Rule”.
Prior to 2017, the rule was that foreigners who submitted applications for U.S. permanent residence within 30 days of entering the U.S. were automatically presumed to have had “Pre-Conceived Intent” and made misrepresentations to CBP officers when they entered the U.S. For applications made within 60 days of entering the U.S., a finding of “Pre-Conceived Intent” could be adjudged but was not automatically adjudged. Finally, for applications that were filed more than 60 days after entering the U.S., there was no presumption of Pre-Conceived Intent at all.
In 2017, the Trump Administration did away with the 30/60 Day Rule and adopted a 90 day Rule. This meant that so long as a foreigner entered the U.S. as a visitor and applied for permanent residence within 90 days, it would be denied. This stance contradicted well settled case law, including the famous immigration cases, In the Matter of Cavazos, and In the Matter of Ibrahim.
In 2021, the policy changed yet again. U.S. Citizenship & Immigration Services, under the Biden Administration, entirely abandoned the numerical 30/60/90 day rule, replacing it with a more fluid “reasonable person” standard. This means that the era of “counting days” is over, until of course, another Administration comes along and changes the Rule yet again. For now, however, the USCIS Policy Manual states as follows: “If there is evidence that would permit a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, then the applicant has not successfully met the burden of proof. In these cases, USCIS considers the applicant inadmissible for fraud or willful misrepresentation, unless the applicant is able to successfully rebut the officer’s inadmissibility finding.”
The bottom line is this: persons who intend on immigrating to the U.S. should not try to do so as soon as they step off their aircraft, whether in New York, Miami, or Los Angeles, and claiming, expressly or impliedly, that they’re just entering the U.S. to visit and then return home. Marrying within a week of entering the U.S. can be especially problematic, as USCIS will find it difficult to believe that someone could reach such a life-altering decision in less than seven days. Nuances of U.S. immigration law should be deeply respected. Foreigners who are considering filing for U.S. immigration benefits should consult professionals ahead of time, even seeking out second opinions if necessary. There is nothing less at stake than the ability to visit, live, and work in the U.S. in the oncoming decades.