Immigrant Intent and the Dual Intent Doctrine

Immigrant Intent and the Dual Intent Doctrine

 

What is a nonimmigrant visa?

 

A nonimmigrant visa is a visa that is issued to a foreign national who intends to be present in the U.S. for a temporary period.  This period varies for different nonimmigrant categories. There are more than 40 different nonimmigrant U.S. visa categories, and each one is used for a different, but very specific purpose. For example, some nonimmigrant visas authorize temporary employment in the U.S.; others permits tourists to visit, and students to study in the U.S.

 

Although nonimmigrant visas are designed for a limited time period, certain types of nonimmigrant visas can be used as a stepping-stone to permanent resident status, which can be a path toward U.S. citizenship.  Our Los Angeles visa attorneys are pleased to provide expert legal assistance to foreign nationals from all countries who are seeking visas of any type.    [LINK TO CONTACT JCS]

 

What is nonimmigrant intent?

 

Many nonimmigrant visas require that the noncitizen seeking such classification must have only nonimmigrant intent. In other words, a foreign national seeking certain types of nonimmigrant visas may only intend to remain temporarily in the United States without jeopardizing his or her nonimmigrant status. This requirement needs to be proved to USCIS, and often the applicant must show that they maintain a permanent foreign residence and that they intend to return to their residence in their home country.

 

Otherwise, there is a presumption that any noncitizen has an “immigrant intent,” or intent to permanently reside in the United States, until the contrary is established.  Often, immigrant intent will cause a visa application rejection and it can even invalidate a currently held U.S. visa.   The presumption of immigrant intent arises from the Immigration and Nationality Act, or INA. The INA states in part:  “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer at the time of application for admission, that he is entitled to a nonimmigrant status…”

 

What is dual intent?

 

Despite the general presumption of immigrant intent, not all nonimmigrant categories are subject to the requirement of nonimmigrant intent.  When this requirement does not apply, it is usually possible to apply the doctrine of "dual intent."  Dual intent means that a noncitizen may have an intention to immigrate to the United States at some time in the future, while properly maintaining a current nonimmigrant status.  The INA specifically exempts H-1 (but not H-2 or H-3) and L nonimmigrants from this presumption.

 

Immigration Law Reform and the H-1 and L-1 Visa Holder

 

The Immigration Act of 1990 (IMMACT 90) changed immigration law, effectively exempting H-1 and L nonimmigrants from the presumption of immigrant intent.  Due to this new immigration act, USCIS and the Department of State (DOS) allow dual intent for H-1 and L nonimmigrants.  IMMACT 90 eliminated the foreign residence requirement for H-1 nonimmigrants.  The requirement to maintain an unabandoned foreign residence abroad never applied to L nonimmigrants, so there was no substantive change in law in that regard.  For more information on H or L visas, please read more here [LINK TO H VISA] and here. [LINK TO L VISA]  If you have any questions or concerns about your visa or immigration options, please contact our experienced Los Angeles immigration attorneys.  We offer a free initial consultation. [LINK TO CONTACT JCS]

 

What are the other benefits of Dual Intent for H-1 and L-1 visa holders?

 

The requirement of entering the U.S. only for a temporary stay was also eliminated for H-1 and L-1 applicants and their accompanying family members.  Dual intent also extends to H-4 and L-2 dependents, meaning that they can also apply to immigrate.

 

Additionally, neither the approval of a labor certification nor the filing of a preference petition for the noncitizen will themselves result in the denial of an H-1B or L petition.   Any requests for an extension of a petition, extension of stay, or change of status are also allowed and will not invalidate the currently held H-1 or L-1 status.

 

What about dual intent for E Visa holders?

 

E status holders are also allowed to hold dual intent.  USCIS has interpreted the INA code which defines the requirements for visa classes as not holding E visa holders to solely nonimmigrant intent. Because the INA does not require an E-status noncitizen to maintain a permanent foreign residence which he or she has no intentions of abandoning, the USCIS decided that they may hold immigrant intent. If you need assistance in applying for permanent residence in the U.S., please contact our experienced Los Angeles immigration attorneys!  [LINK TO CONTACT JCS]

Is dual intent allowed for O visa holders?

 

Dual intent is recognized for O-1 aliens under USCIS regulations.  The approval of a permanent labor certification or the filing of a preference petition for a noncitizen is not a basis for denying an O-1 petition.  Additionally, immigration law allows a request to extend an O-1 petition, an application for admission, change of status, or extension of stay.   The INA definition of the O-1 visa does not require the noncitizen to have a foreign residence which he or she has no intention of abandoning.  Thus, an approved labor certification or a filed immigrant petition will not jeopardize O-1 status or ability to obtain an O-1 visa. It will also not jeopardize one’s ability to request to extend their O-1 status. The noncitizen may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.  For more information on O visas, please read more here.  [LINK TO O VISA]

Can I hold a valid P visa and still carry immigrant intent?

 

Yes; P visas are considered dual intent.  The purpose of a P-1 visa is similar to that of an O-1 visa. It is given to artists, entertainers, and athletes and groups thereof of extraordinary ability and their support personnel so that they can tour the U.S.  Although the INA definition for a P visa requires the noncitizen to have a foreign residence which he or she has no intention of abandoning, and a P visa applicant must show a residence abroad that they do not intend to abandon, they can pursue permanent residency without violating the terms of the visa.  According to USCIS, the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P petition, a request to extend such a petition, or the noncitizen's admission, change of status, or extension of stay. It is important to note that this provision of the law does not include essential support personnel. For more information on P visas, please read more here.  [LINK TO P VISA]

Is it possible to become a lawful permanent resident if I hold a valid TN visa?

 

Dual intent is not recognized for TN workers. The INA states that the TN class of visa is to be treated as a regular admission class, and therefore, subject to the presumption of immigrant intent.  However, in 2008, U.S. Customs and Border Protection clarified that TN visa applicants may be admitted and extend their stay while an immigrant petition is pending or approved.  The TN visa holder cannot file for adjustment of status or an immigrant visa interview, and cannot intend to immigrate on this specific visit. Once a TN visa holder files an application for an immigrant visa (visa interview) or for adjustment of status, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant. Hence, the TN is not a dual intent visa, despite these options.  For more information, please visit our section here.  [LINK TO TN TO GC]  Immigration law is complex and constantly changing.  At JCS Immigration and Visa Services, we focus on immigration law and are up to date on immigration law and reforms.  For expert legal counsel, contact our Los Angeles immigration attorneys today! [LINK TO CONTACT JCS]

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