On January 23, 2019 and April 1, 2019, the Department of State (DOS) tweaked the 90-day rule language in the Foreign Affairs Manual (FAM) in a positive direction, by removing a reference that was thought to unfairly flag students. The helpful DOS edit was of the following item in the list at 9 FAM 302.9-4(B)(3)(g)(2), which contains examples of conduct that could lead to an automatic presumption of misrepresentation if it occurred within 90 days of admission to the United States:
2017 language: “A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”
2019 language: “A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”
DOS also revised the heading of that section, 9 FAM 302.9-4(B)(3)(g), to use conditional language more in line with an evidence-based rather than categorical determination process. The heading now reads:
Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status
But still keep in mind that the list in the FAM is not an exclusive list; it’s prefaced by, “For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to…” Nevertheless, the fact that students are no longer called out for unwarranted special scrutiny is always welcome.