Watch Out For the 90-Day Rule: Mandatory Retirement For Former Presidential Appointees

Posted: 12:54 am ET

 

Yo!

3 FAM 6215
MANDATORY RETIREMENT OF FORMER PRESIDENTIAL APPOINTEES
(CT:PER-594;   03-06-2007)
(State only)
(Applies to Foreign Service Employees)

a. Career members of the Service who have completed Presidential assignments under section 302(b) of the Act, and who have not been reassigned within 90 days after the termination of such assignment, plus any period of authorized leave, shall be retired as provided in section 813 of the Act.  For purposes of this section, a reassignment includes the following:

(1)  An assignment to an established position for a period of at least six months pursuant to the established assignments process (including an assignment that has been approved in principle by the appropriate assignments panel);

(2)  Any assignment pursuant to section 503 of the Foreign Service Act of 1980, as amended;

(3)  A detail (reimbursable or nonreimbursable) to another U.S. Government agency or to an international organization;

(4)  A transfer to an international organization pursuant to 5 U.S.C. sections 3581 through 3584; or

(5)  A pending recommendation to the President that the former appointee be nominated for a subsequent Presidential appointment to a specific position.

b. Except as provided for in paragraph c of this section, a reassignment does not include an assignment to a Department bureau in “overcomplement” status or to a designated “Y” tour position.

c.  The Director General may determine that appointees who have medical conditions that require assignment to “medical overcomplement” status are reassigned for purposes of Section 813 of the Foreign Service Act.

d. To the maximum extent possible, former appointees who appear not likely to be reassigned and thus subject to mandatory retirement under section 813 of the Act will be so notified in writing by the Director General not later than 30 days prior to the expiration of the 90-day reassignment period.

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Visa Holders Who Violate #90DayRule May be Presumed to be of “Material Misrepresentation”

Posted: 4:44 am ET
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On September 26, the State Department updated its FAM guidance on INELIGIBILITY BASED ON ILLEGAL ENTRY, MISREPRESENTATION AND OTHER IMMIGRATION VIOLATIONS – INA 212(A)(6)

INA 212(a)(6)(C)(i) provides an alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or willfully misrepresenting a material fact at any time shall be ineligible for a visa.

9 FAM 302.9-4(B)(2) notes that “most cases of inadmissibility under this section will involve “material misrepresentations” rather than “fraud” since actual proof of an alien’s intent to deceive may be hard to come by.  As a result, the Notes in this section will deal principally with the interpretation of “material misrepresentation.”

The guidance tells consular adjudicators that “To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence.”

On September 16, 2017 the State Department sent 17 STATE 95090 on the Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule

1. SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.

The 90 day rule

2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by:

1) engaging in unauthorized employment;
2) enrolling in a course of unauthorized academic study;
3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or
4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation.

You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

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