Wilner & O'Reilly, APLC
One Practice. One Focus. One Passion: Immigration Law.


In today's climate, it is hard to go without a day where immigration law is not in the spotlight. However, even in 2017, some immigration regulations and policies can change quietly and without much fanfare. The case in point is the September 1, 2017, Department of State's new guidance as to misrepresentation based on conduct. Specifically, the new guidance applies to individuals who are present in the United States as tourists, students, and other non-immigrants, but engage in behavior "inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit." See 9 FAM 302.9-4(B)(3).

This new policy is very significant because foreign nationals can now be found inadmissible to the United States for fraud and willful misrepresentation if they engage in conduct inconsistent with the terms of their nonimmigrant status within 90 days of entry (used to be 60 days). This conduct includes, but is not limited to, the following:

  • Working in the United States without authorization
  • Enrolling in a course of academic study, if this is not permitted for that nonimmigrant status (for example, a visitor for pleasure)
  • Marrying a United States citizen or a lawful permanent resident in the United States and taking up residence in the United States for visitors (B visa holders), students (F visa holders), and any other nonimmigrants who are in the United States a temporary basis
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment

If foreign nationals violate or engage in conduct inconsistent with the terms of their nonimmigrant status after 90 days of entry, a presumption of willful misrepresentation will not automatically arise. Government officials will, however, have discretion to look at the totality of circumstances to determine if these foreign nationals were untruthful about the purpose of their admissions to the U.S.

U.S. Citizenship and Immigration Services has yet to issue a formal policy update, but it is expected that this new rule will be widely accepted and followed. Visitors, students, or other nonimmigrants whose status does not allow immigrant intent should contact experienced immigration attorneys before they seek to change their status or apply for permanent residency in the United States.



Richard M. Wilner

Founding Partner

Richard M. Wilner is a founding member of Wilner & O'Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.


Agnieszka (Aggie) Dolinska

Senior Attorney

Aggie Dolinska is an Associate Attorney with Wilner & O'Reilly, APLC, and heads the firm's removal defense practice group. She is Board Certified as a specialist in immigration and nationality law by the State Bar of California's Bureau of Legal Specialization. Ms. Dolinska's immigration practice involves all areas of Immigration and Nationality Law, including family and employment-based immigration, non-immigrant visas, removal defense, litigation, and asylum law. Ms. Dolinska is currently the head of the litigation and deportation department in our office. Her removal defense practice includes representing clients in proceedings before the Immigration Court and on appeal with the Board of Immigration Appeals and the Court of Appeals for the Ninth Circuit.

No Comments

Leave a comment
Comment Information

Lawyers Your Can Trust

Our Office Locations


    Orange Office
    333 City Boulevard West Ste. 1918
    Orange, CA 92868

    Toll Free: 800-352-7034
    Phone: 714-919-8880
    Map & Directions

    Fresno Office
    8050 N Palm
    Ste. 300
    Fresno, CA 93711

    Toll Free: 800-352-7034
    Phone: 559-490-1490
    Fax: 888-448-0638
    Map & Directions

    Riverside Office
    3403 Tenth Street Ste. 742
    Riverside, CA 92501

    Toll Free: 800-352-7034
    Phone: 951-787-0010
    Map & Directions

  • Sacramento Office
    2730 Gateway Oaks Dr. Ste. 110
    Sacramento, CA 95833

    Toll Free: 800-352-7034
    Phone: 916-643-4657
    Map & Directions

    San Bruno Office
    1001 Bayhill Drive
    Ste. 200
    San Bruno, CA 94066

    Toll Free: 800-352-7034
    Phone: 650-243-0475
    Map & Directions


    Boise Office

    10173 West Overland Road
    Boise, ID 83709

    Toll Free: 800-352-7034
    Phone: 208-391-2020
    Fax: 208-485-7969
    Map & Directions

  • UTAH

    Orem Office
    1145 South 800 East
    Orem, UT 84097

    Toll Free: 800-352-7034
    Phone: 801-594-9999
    Map & Directions

    Salt Lake City Office
    675 E 2100 S, Ste. 300
    Salt Lake City, UT 84106

    Toll Free: 800-352-7034
    Phone: 801-594-9999
    Map & Directions