Foreign spouses and fiances of U.S. citizens: A 90 Day Rule has replaced the prior 30/60 Day Rule in the Foreign Affairs Manual (FAM).

Immigration officers at U.S. consulates and ports of entry around the world use the FAM as guidance when issuing visas and admitting foreign nationals to the U.S. Previously, the FAM included a “30/60 Day Rule.” The rule was meant to guide officers in determining whether someone who entered the U.S. using a nonimmigrant visa (such as a B1/B2 visitor’s visa, an F-1 student visa, or a J-1 exchange visitor’s visa), and later married a U.S. citizen and applied for adjustment of status (a “green card”), misrepresented their intent at entry. There was a presumption of misrepresentation if the individual married a citizen and applied for the green card within 30 days of entry.

On September 1, 2017, the prior 30/60 Day Rule was eliminated, and a new 90 Day Rule was created. There is now a presumption of misrepresentation if an individual enters the U.S. and marries a U.S citizen and applies for a green card within 90 days of entry. This new rule has potentially significant consequences. If a finding of misrepresentation is made, an individual can be barred from obtaining a green card through marriage.

On April 18, 2017, the President issued an executive order titled Buy American Hire American ("BAHA"). The order had strong language directing various agencies, including the Departments of State and Homeland Security, to "protect the interests of United States workers." While it did not (and could not) not make any specific changes to regulations, we are now seeing the impact in very concrete ways at consulates and with USCIS petitions.

The President cannot simply change laws or regulations - only Congress can change law, and regulation change requires a minimum of six months of open public notice and comment. So the Departments of State and Homeland Security are using their discretionary authority to "implement" the BAHA order in a variety of creative fashions. For example, the Department of State issued nonbinding subregulations that require consular officers to ask work visa candidates why an American cannot do their job. In addition, USCIS is looking skeptically at salaries to make sure companies are not underpaying for the job requirements and otherwise impacting US workers.

What does this mean for you? It means you need to be prepared to answer some new questions about issues not required by the laws and regulations that control your work visa. It means you need to answer these questions without undermining your visa petition and without creating problems for future immigration petitions. It means you need to talk to a lawyer.