Earlier this month, the Department of State issued new rules regarding misrepresentations upon entry and changed the former 30-60 day rule to a clear 90 day rule. The new rule states in part, “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”
The concept in question, most typically, applies to a situation where a person enters on a non-immigrant visa but, then chooses to file an immigrant petition i.e. permanent residency. There are however, other circumstances where the rule may apply, such as entering on a B visa and then seeking a change of status to an employment category. We do not believe that the rule extends to situations where a person enters on an H-1b for one employer and then files for a transfer petition to another employer. Due to the fact-sensitive nature of the application of the rule and the significant consequences from a finding of misrepresentation, it is recommended that you seek counsel before making any change within 90 days of an admission.