Immigrant Intent and Dual Intent Explained

Under United States immigration laws, a foreign national is a person who is not a citizen of the United States. Foreign nationals seeking to enter the United States do so for a variety of reasons. A person’s purpose for travelling to the United States determines the visa category that he will be applying for and travelling within. Under United States immigration laws, there are two main visa categories: immigrant visas and nonimmigrant visas. Immigrant visas are issued to foreign nationals who are entering the United States with the intention of residing in the country on a permanent basis. Nonimmigrant visas are issued to foreign nationals who seek to enter the United States on a temporary basis. This article focuses on the nonimmigrant visa category.

Due to the temporary nature of a nonimmigrant visa, a factor that is considered by a consulate when granting said visa, and also at ports of entry to the United States, is whether or not a foreign national intends to remain in the United States beyond his allotted time to stay in the country.   This factor is known as immigrant intent. It is presumed that every applicant for a nonimmigrant visa has immigrant intent, meaning that the applicant intends to remain in the United States even after his allotted time to stay in the country legally has expired. A foreign national has a duty to prove to an immigration officer that he does not have immigrant intent. An applicant may typically prove this by showing strong ties to his country of residence, a return plane ticket, and familial ties to name a few.  Several common nonimmigrant visa categories that require a foreign national to prove that he does not have immigrant intent include:

Business (B-1)

Visitor (B-2)

Student (F-1)

Exchange Visitor (J)

Worker (H-1)

Trainee/Worker (H-3)

However, there are some nonimmigrant visas that permit a foreign national to possess dual intent. The concept of dual intent is a legal fiction that allows an immigration officer to grant a nonimmigrant visa or admit a foreign national into the United States even though the visa may allow for the holder to seek permanent residency status. This means that a foreign national may enter the United States on a nonimmigrant visa that may allow him to seek a green card in the future or, alternatively, he has already filed a petition for a green card but is seeking to enter the United States on a nonimmigrant visa. This concept of dual intent is most commonly applied to people who possess Specialty Worker (H-1B) or Intracompany Transferees (L) visas, which are temporary visas, and simultaneously seek Employment Based sponsorship while in the United States. Several other common nonimmigrant visa categories that carry dual intent include:

Workers with Extraordinary Ability (O)

Treaty Traders (E)

Fiancee (K)

The above lists mention only the most common nonimmigrant visa categories. Each visa carries its own requirements and evidentiary standard. Please call 415-221-2345 or consult an experienced immigration attorney at the Law Offices of Vaughan de Kirby, A.P.C. for a consultation on your specific matter.  

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If you are seeking permanent residence status in the U.S., request a free copy of Complete Guide To The EB-5 Green Card to learn about the EB-5 visa program.

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