Go Back  British Expats > Living & Moving Abroad > USA > The Trailer Park
Reload this Page >

My essay on the 30/60 day rule

My essay on the 30/60 day rule

Old Oct 4th 2002, 10:08 pm
  #16  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Paul:


I've explained it. I explained it again. But let's try one more time in simple words:

The so-called 30/60 rule is NOT, repeat NOT, a legal defintion of what consitutes fraud or misrpresentation. It is NOT a substantive rule of law. It is NOT a "rule of law" at all. It is but a PROCEDURAL guideline for administrative purposes within the Department of State.

It is NOT a rule that should be used for any type of advance planning. It is NOT a "loophole."

I'm sorry that I can't explain it any better. You have admitted that you are not a lawyer. I am and one of long experience. I took a bar exam in a second state 15 years out of law school -- and I was amazed that the law actually made some sense to me, even in the areas I reviewed that were outside of my bailiwick of practice.

On the http://k1.exit.com website, there is an essay on the 30/60 rule that looks quite similar to the one you posted here. I became aware of it because some poor woman thought that her fiance would be committing some type of fraud if he entered on his H-1b visa, worked for the petitioning employer and they married within 60 days. She kept questioning how this could not be fraud and I simply couldn't understand how the perfectly lawful conduct she was contemplating could be fraud -- she pointed out the 30/60 rule.

Final word: 30/60 is not a definition of what consitutes fraud or misrepresentation. It is not a planning tool.

Enough already.
Folinskyinla is offline  
Old Oct 4th 2002, 11:58 pm
  #17  
Forum Regular
 
Joined: Sep 2002
Posts: 53
trburton is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

You both miss the real point. Our government (INS) should not try to be God. They have screwed up my life and do not care. A congressman's liazon just told me interviewing officers routinely hold up cases if they dislike the people or have personal prejudices. This can extend times an extra year or more. The system is broke!!!!!!!!!!!!
trburton is offline  
Old Oct 5th 2002, 12:55 am
  #18  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by trburton:
You both miss the real point. Our government (INS) should not try to be God. They have screwed up my life and do not care. A congressman's liazon just told me interviewing officers routinely hold up cases if they dislike the people or have personal prejudices. This can extend times an extra year or more. The system is broke!!!!!!!!!!!!
Hi:

I'm painfully aware of the damage the INS Examiner or ConOff from Hell can do to people. It is at that point that I get retained and try to fix the damage.

I don't know the particulars of your case so I won't comment except that I'm sorry that you are going through this mess.

One of the reasons I participate on this NG is that I want to AVOID having messes made in the first place. I see the perception of the 30/60 rule as a planning tool and possible loophole as having a strong potentional to screwing up peoples' lives.

Good luck.
Folinskyinla is offline  
Old Oct 5th 2002, 1:26 am
  #19  
Forum Regular
 
Joined: Sep 2002
Posts: 53
trburton is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

I respect your knowledge & skill with words. Your abilitys are easily recoqnized. My wife, as many grew up without the ablity to speak out. She did anyway and suffered the consequences. She lectured in many countrys. I can not say more in public. What I am saying is we must never forget what this country means. My wife reminds me of this every day. My congressman's office indicated her previous job level in her country of citizenship may be the problem. Is that something you have ever encountered?
trburton is offline  
Old Jan 22nd 2004, 4:27 am
  #20  
billy rains
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

thanks for the essay mr gani
 
Old Jan 22nd 2004, 8:36 am
  #21  
elviswasmydad
Guest
 
Posts: n/a
Default Re: My essay on the 30/60 day rule

you are quite the writer Paul
***** What is the 30/60 day rule?

It is a rule found in the Department of State (DoS) Foreign Affairs Manual
(FAM).

***** Where can it be found?

http://foia.state.gov/mas-
terdocs/09fam/0940063N.pdf


on pages 5,6,7.

***** Is this rule law?

No. The directives in the FAM could be described as something to the
effect of "official procedures". Consular Officials are directed to
follow these procedures, and they can get in trouble if they don't.
However, these procedures are subject to revision at any time by the DoS
HQ in Washington, DC. Presumably, the higher up Consular Officials could
also modify procedures at their discretion, as long as the modifications
are not inconsistent with the law or regulations.

***** Who must follow the 30/60 day rule?

Officially, only Consular Officials, while they are determining a visa
applicant's eligibility for a visa. INS officials in America are
presumably not required to follow this rule, although there have been
documented instances where they do.

***** When is the 30/60 day rule applied by Consular Officials?

    >From the FAM:

The consular officer should apply the 30/60-day rule if an alien states on
his or her application for a B-2 visa, or informs an immigration officer
at the port of entry, that the purpose of his or her visit is tourism, or
to visit relatives, etc., and then violates such status by: ... Marrying
and takes up permanent residence ...

***** What is the criteria for finding a violation?

    >From the FAM:

If an alien violates his or her nonimmigrant status by adjusting status or
by seeking unauthorized employment within 30 days of entry, the consular
officer may presume that the applicant misrepresented his or her intention
in seeking a visa or entry.

If an alien initiates such violation of status more than 30 days but less
than 60 days after entry into the United States, no presumption of
misrepresentation arises. However, if the facts in the case give the
consular officer reasonable belief that the alien misrepresented his or
her intent, then the consular officer must give the alien the opportunity
to present countervailing evidence. If the officer does not find such
evidence to be persuasive, then the consular officer must submit a
comprehensive report to the Department (CA/VO/L/A) for the rendering of an
advisory opinion.

When violative conduct occurs more than 60 days after entry into the
United States, the Department does not consider such conduct to constitute
a basis for an INA 212(a)(6)(C)(i) ineligibility.

***** What is the consequence if a violation is found?

You will be considered to have made a material misrepresentation on your
visa application, thus making you ineligible for a visa. You will be
permanently barred from the United States, unless you apply for and
successfully obtain a hardship waiver.

***** I don't get it - if I'm *already* in the U.S., and I came to the
U.S. on a B-2 visa and married within 30 days, how does this 30/60 day
rule affect me?

It shouldn't, as this rule only applies to Consular Officials, not INS
agents in the U.S.

However, there have been documented cases where INS officials HAVE applied
the 30/60 day rule when adjudicating Adjustment of Status (AOS)
applications. Here is one case, an Administrative Appeals Office (AAO)
decision:

http://www.gani.com/immigration/3-
060day.pdf


***** What's the basis for INS officials applying the 30/60 day rule?

INS officials are authorized and required to look for any
misrepresentations you might have made in order to procure a visa and
enter the U.S. This includes having the Consulate send to them your
original visa application in order to search for misrepresentations.

Now, if you said on your B-2 visa application that you intended to go on
vacation, but instead you came to the U.S. and married with 30 days, the
INS *could* use that as a basis to determine that you made a material
misrepresentation!

***** What if I lied about having a job, or having a fiance in the U.S.?
If I wait 60 days before marrying, will I be safe?

No! If you lied about material facts, then the 30/60 day rule doesn't
even need to be applied. You will be found guilty of material
misrepresentation *regardless* of how long you wait to get married.

***** Does this 30/60 day rule apply if I entered on a Visa Waiver, or
Canadian waiver, or a student visa, etc...?

If you strictly read the rule, it only appears to address B-2 visas.
However, the same criteria *could* be used with other visas that have
similar criteria to a B-2 visa. It's best *not* to depend that the 30/60
day rule will not be applied to you!

***** So, what if I came to the U.S. as a tourist, and married within 30
days. Am I in trouble?

Not necessarily. The 30/60 day rule is applied when your STATEMENTS are
inconsistent with your ACTIONS. If you never, at any time, made a
statement to a Consular Official or INS agent that was inconsistent with
your actions, you're safe.

***** OK, so I came in from Canada - the INS Inspector didn't even ask me
a single question - he just waved me through. Can I marry within 30 days?
Is there any risk?

The Board of Immigrations Appeals (BIA) has ruled that having a
preconceived intent to immigrate is not a bar to AOS. See:

http://k1.exit.com/cavazos.pdf
http://k1.exit.com/ibrahim.pdf

And also see the more recently dated document:

http://k1.exit.com/touristletter.-
html


So, you are probably safe.

Now, this doesn't mean that an INS agent could not *incorrectly* apply the
30/60 day rule towards you. You should win in the end, after appealing,
but it could certainly delay your AOS and be very costly.

***** So does that mean everyone who enters as a tourist should wait 60
days to marry?

You would probably *lower* your risk of having problems at AOS time if you
waited 60 days. Note, however, your risk otherwise is already pretty low,
assuming of course you didn't make any misrepresentations.

***** What's this I read about having to prove that the marriage must be
"spur of the moment"?

It's mostly nonsense. The BIA decisions pretty much negate any issues you
may have regarding your pre-conceived intent to immigrate (marry & stay).

The only time it would be an issue is if you told a CO or INS official
that you were not planning to marry, but then you did marry and file AOS
within 30 days after arriving in the U.S. Then, you would have to
demonstrate that your decision to marry was "spur of the moment" in order
to avoid a 30/60 day violation.

***** OK, I married within 30 days, after stating that I would not. Will
I be given a chance to prove that my actions were not premeditated?

    >From the 30/60 day rule:

The burden of proof falls on the alien to establish that his or her true
intent was to visit, tour, etc. In the absence of any further offering of
proof by the alien to rebut the presumption, a finding of ineligibility
will result. The consular officer must give the alien the opportunity to
rebut the presumption by presentation of evidence to overcome it.

***** What evidence must a CO have to find me guilty of violating the
31/60 day rule?

    >From the 30/60 day rule:

To find an alien ineligible under INA 212(a)(6)(C)(i) there must be
evidence that, at the time of the visa application or entry into the
United States, the alien stated orally or in writing to a consular or
immigration officer that the purpose of the visit to the United States was
other than to work or remain indefinitely. Ordinarily, such evidence would
be in the the POE (or
 
Old Jan 22nd 2004, 2:51 pm
  #22  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally posted by billy rains
thanks for the essay mr gani
Hi:

[Sigh]. Please read the entire string. "30/60" took on a life of its own on this NG and became something which it is not.

Paul was well intentioned. His essay does make correct citations. However, without legal training, he did not engage in correct legal analysis and strung the citations in a way to reach incorrect conclusions.

Again, please read the ENTIRE string. The main point to make is that "30/60" is NOT a "planning" tool.
Folinskyinla is offline  
Old Jan 22nd 2004, 3:00 pm
  #23  
Concierge
 
Rete's Avatar
 
Joined: Apr 2001
Posts: 43,072
Rete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond repute
Default Re: My essay on the 30/60 day rule

Our newest resident [insert five letter noun] has been bumping older posts up. And Elvis' bastard is answering him which makes it difficult to get the post back to past where it belongs.

Rete


Originally posted by Folinskyinla
Hi:

[Sigh]. Please read the entire string. "30/60" took on a life of its own on this NG and became something which it is not.

Paul was well intentioned. His essay does make correct citations. However, without legal training, he did not engage in correct legal analysis and strung the citations in a way to reach incorrect conclusions.

Again, please read the ENTIRE string. The main point to make is that "30/60" is NOT a "planning" tool.
Rete is offline  
Old Jan 22nd 2004, 3:03 pm
  #24  
BE Forum Addict
 
Joined: Oct 2002
Posts: 1,228
DCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really niceDCMark is just really nice
Default Re: My essay on the 30/60 day rule

Originally posted by Rete
Our newest resident [insert five letter noun] has been bumping older posts up. And Elvis' bastard is answering him which makes it difficult to get the post back to past where it belongs.

Rete
FYI, Elvis is the same person as the fake Paul G.
DCMark is offline  
Old Jan 22nd 2004, 4:02 pm
  #25  
Maño-Americano
 
ironporer's Avatar
 
Joined: Apr 2003
Location: In the heart of the Ozarks
Posts: 10,208
ironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond reputeironporer has a reputation beyond repute
Default Re: My essay on the 30/60 day rule

Originally posted by trburton
You both miss the real point. Our government (INS) should not try to be God. They have screwed up my life and do not care. A congressman's liazon just told me interviewing officers routinely hold up cases if they dislike the people or have personal prejudices. This can extend times an extra year or more. The system is broke!!!!!!!!!!!!
Hope you never piss off an INS agent, or a cop, or anyone else in a position of athority in the Gov't. What the SHOULD BE AND WHAT THEY ARE IS TWO DIFFERENT THINGS.
ironporer is offline  
Old Mar 10th 2006, 2:51 pm
  #26  
Account Closed
 
Joined: Sep 2002
Posts: 16,266
Folinskyinla is an unknown quantity at this point
Default 3 1/2 year bump -- example of dangerous "UPL"

Hi:

Given the deterioration of the discussion of the California Bar Bulletin Article I posted, I decided to bump up an old string about a dedicated and well meaning "hobbyist" giving legal opinions.

Please note that I mention in the string that many attorneys get this one wrong. Which is to say, an attorney is not perfect. My first legal boss in 1975 warned me that "You will boot cases all the time. Try to catch it before it goes out the door if you can. I won't tell you how many I've booted."
Folinskyinla is offline  
Old Mar 10th 2006, 8:10 pm
  #27  
Forum Regular
 
lovenlife's Avatar
 
Joined: Jan 2005
Location: West By God VA
Posts: 104
lovenlife is an unknown quantity at this point
Default Re: My essay on the 30/60 day rule

Originally Posted by Folinskyinla
Hi:

[As a former Sunbeam Tiger owner, any good Lucas Electric jokes are appreciated -- but only NEW ones].

Ahh, I had a 69' BSA 650 lighting. "Lucas Electrics, the Prince of Darkness"

Ok ok I'm sure you heard that one. lol

The tiger came with ford 289 didn't it? mating a ford v-8 to the lucas electrical system............... <runs in terror, screaming like a loon>

Last edited by lovenlife; Mar 10th 2006 at 8:13 pm.
lovenlife is offline  
Old Mar 10th 2006, 8:14 pm
  #28  
Eric S.
Guest
 
Posts: n/a
Default Re: 3 1/2 year bump -- example of dangerous "UPL"

What does it mean to "boot" a case??

- Eric S.


"Folinskyinla" <[email protected]_expats.com> wrote in message
news:[email protected] m...

    > Please note that I mention in the string that many attorneys get this
    > one wrong. Which is to say, an attorney is not perfect. My first legal
    > boss in 1975 warned me that "You will boot cases all the time. Try to
    > catch it before it goes out the door if you can. I won't tell you how
    > many I've booted."
    > --
    > Certified Specialist
    > Immigration & Nat. Law
    > Cal. Bar Board of Legal Specialization
    > Posted via http://britishexpats.com
 
Old Mar 10th 2006, 8:30 pm
  #29  
Septicity
 
fatbrit's Avatar
 
Joined: May 2004
Posts: 23,762
fatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond reputefatbrit has a reputation beyond repute
Default Re: 3 1/2 year bump -- example of dangerous "UPL"

Originally Posted by Folinskyinla
Hi:

Given the deterioration of the discussion of the California Bar Bulletin Article I posted, I decided to bump up an old string about a dedicated and well meaning "hobbyist" giving legal opinions.
Sorry, but I'm confused.

The article you posted really didn't seem to cover or discuss hobbyists giving legal opinions in newsgroups at all. I wonder where you and your buddy draw this tenuous link with UPL from? You have given us no examples to my knowledge where the powers-that-be have successfully (or even ever) brought charges posters to a newsgroup in such a format as we have here.
fatbrit is offline  
Old Mar 10th 2006, 9:08 pm
  #30  
Concierge
 
Rete's Avatar
 
Joined: Apr 2001
Posts: 43,072
Rete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond reputeRete has a reputation beyond repute
Default Re: 3 1/2 year bump -- example of dangerous "UPL"

Originally Posted by fatbrit
Sorry, but I'm confused.

The article you posted really didn't seem to cover or discuss hobbyists giving legal opinions in newsgroups at all. I wonder where you and your buddy draw this tenuous link with UPL from? You have given us no examples to my knowledge where the powers-that-be have successfully (or even ever) brought charges posters to a newsgroup in such a format as we have here.

As bumping of very old threads is frowned upon by BE, I am closing the thread and ask that if you have comments to add that you do so under the thread I opened with a link to this thread.

Rete
Moderator
Rete is offline  

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off


Contact Us Archive Advertising Cookie Policy Privacy Statement Terms of Service

Copyright © 2018 MH Sub I, LLC dba Internet Brands. All rights reserved. Use of this site indicates your consent to the Terms of Use.