Dual Intent - Did the Consulate Deny Your Nonimmigrant Visa Because of It?
05/30/2011
Many foreign nationals seeking nonimmigrant visas are unclear about the resumption of immigrant intent and suffer visa denials because they are unable to prove their temporary intent to remain in the U.S. In this article, we aim to explain you why the majority of nonimmigrant visas are denied, the responsibility of a foreign national seeking a nonimmigrant visa, an introduction to the doctrine of dual intent and a list of nonimmigrant classifications that support the dual intent policy.
Why Most Nonimmigrant Visa Applications Are Denied?
All non-immigrants coming to the United States are presumed to have immigrant intent, that is, the U.S. Consulate abroad assumes that the applicant wants to live in the U.S. permanently. Most nonimmigrant visa applications are denied because the nonimmigrant visa applicant is unable to prove that they only have the intent temporarily and that they have the intent to return to their home country. The applicant is unable to show significant family or employment related ties to his or her country of origin to the satisfaction of the consular officer. For example, the applicant’s entire family lives in the U.S. or the consular officer becomes aware that there is a pending immigrant petition for the applicant.
A foreign national who seeks to enter the U.S. as nonimmigrant in most visa classifications is responsible to prove that his or her intent to prove that his or her intent to come to the U.S. is purely temporary and that they have the intent to return to their country of origin. In other words, foreign nationals entering in most nonimmigrant visa categories should not have the intent to remain permanently in the United States.
The Doctrine of Dual Intent—What Does the Policy Hold?
Under most circumstances, a foreign national who wishes to come to the U.S. as a nonimmigrant:
1. needs to maintain a residence abroad which he or she has no intention of abandoning;
2. and is assumed to be an intending immigrant unless the contrary is established.
NOTE
Filing of an Immigrant Visa Petition or an Adjustment of Status application indicates a desire on the part of the applicant to obtain permanent resident status in the U.S.
However, there are several nonimmigrant visa categories where the preceding is not required. The doctrine of dual intent dictates that you can enter and remain in the U.S. lawfully as a nonimmigrant while at the same time not actually maintaining a foreign residence and/or having immigrant intent.
Nonimmigrant Visa Categories That Support Dual Intent:
The following are the nonimmigrant visa categories that support the doctrine of dual intent:
1. H and L Visa Categories
The H-1B & L visa categories are the only employment based non-immigrant visa categories where the dual intent doctrine is recognized statutorily. Current regulations recognize that the filing of an application for or approval of a labor certification or an Immigrant Visa petition or the filing of an Adjustment of Status application shall not be a basis for denying H-1 or L-1 petitions which includes requests for extension of stay or change of status to H-1 or L-1 classification.
NOTE
While dual intent doctrine is recognized for H-1B visa classification, similar exemptions are not available to foreign nationals in or seeking H1B1, H-2A, H-2B, H-3 or TN visa classifications.
2. O Visas
Dual intent appears to be recognized for O-1 visa holders. While not statutorily recognized like the H-1 or L, O-1 visa applicants are not required to maintain a residence abroad. Regulations provide that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the foreign national’s application for admission, change of status, or extension of stay in O-1 classification.
While an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon, there must however be a temporary intent to remain on the part of the O-1 visa holder. The foreign national 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.
NOTE
The dual intent provision, however, does not apply to O-2 visa applicants. Unlike O-1 non-immigrants, the O-2 visa applicants must satisfy that he or she has a residence abroad and no intent to abandon that residence.
3. P Visas
The Immigration and Nationality Act requires that P visa applicants must have a foreign residence which he or she has no intention of abandoning. However, the regulations also provide that 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 alien's admission, change of status, or extension of stay.
Thus, the alien may legitimately come to the United States for a temporary period as a P 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.
NOTE
The dual intent provision, however, does not apply to essential support personnel.
4. E Visas
A limited form of dual intent has been recognized for the E visa classification. Regulations provide that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
However, foreign nationals in E visa classification are required to maintain an intention to depart the United States upon the expiration or termination of their E-1 or E-2 status. The foreign national is required to satisfy that his or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of the legality of their status.
Conclusion
Foreign nationals seeking nonimmigrant visa classifications that do not permit dual intent, including but not limited to B-1/B-2, F-1/F-2, H-3 and H-2B, must generally demonstrate that they intend to remain only temporarily in the U.S. and will return to their home country.
Any clear indication that the foreign national desires or intends to remain permanently in the United States will prevent him or her from obtaining a visa, gaining admission, obtaining an extension or change of status. Foreign nationals seeking a nonimmigrant visa buy also have an intention to pursue permanent residence in the U.S. must consider the limited exemptions given to certain nonimmigrant visa classifications under the dual intent doctrine and consult an experienced immigration attorney on the suitable options available to them to make informed decisions and ensure that their chances of obtaining a visa or extension of stay or change of status are not adversely affected.
Why Most Nonimmigrant Visa Applications Are Denied?
All non-immigrants coming to the United States are presumed to have immigrant intent, that is, the U.S. Consulate abroad assumes that the applicant wants to live in the U.S. permanently. Most nonimmigrant visa applications are denied because the nonimmigrant visa applicant is unable to prove that they only have the intent temporarily and that they have the intent to return to their home country. The applicant is unable to show significant family or employment related ties to his or her country of origin to the satisfaction of the consular officer. For example, the applicant’s entire family lives in the U.S. or the consular officer becomes aware that there is a pending immigrant petition for the applicant.
A foreign national who seeks to enter the U.S. as nonimmigrant in most visa classifications is responsible to prove that his or her intent to prove that his or her intent to come to the U.S. is purely temporary and that they have the intent to return to their country of origin. In other words, foreign nationals entering in most nonimmigrant visa categories should not have the intent to remain permanently in the United States.
The Doctrine of Dual Intent—What Does the Policy Hold?
Under most circumstances, a foreign national who wishes to come to the U.S. as a nonimmigrant:
1. needs to maintain a residence abroad which he or she has no intention of abandoning;
2. and is assumed to be an intending immigrant unless the contrary is established.
NOTE
Filing of an Immigrant Visa Petition or an Adjustment of Status application indicates a desire on the part of the applicant to obtain permanent resident status in the U.S.
However, there are several nonimmigrant visa categories where the preceding is not required. The doctrine of dual intent dictates that you can enter and remain in the U.S. lawfully as a nonimmigrant while at the same time not actually maintaining a foreign residence and/or having immigrant intent.
Nonimmigrant Visa Categories That Support Dual Intent:
The following are the nonimmigrant visa categories that support the doctrine of dual intent:
1. H and L Visa Categories
The H-1B & L visa categories are the only employment based non-immigrant visa categories where the dual intent doctrine is recognized statutorily. Current regulations recognize that the filing of an application for or approval of a labor certification or an Immigrant Visa petition or the filing of an Adjustment of Status application shall not be a basis for denying H-1 or L-1 petitions which includes requests for extension of stay or change of status to H-1 or L-1 classification.
NOTE
While dual intent doctrine is recognized for H-1B visa classification, similar exemptions are not available to foreign nationals in or seeking H1B1, H-2A, H-2B, H-3 or TN visa classifications.
2. O Visas
Dual intent appears to be recognized for O-1 visa holders. While not statutorily recognized like the H-1 or L, O-1 visa applicants are not required to maintain a residence abroad. Regulations provide that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the foreign national’s application for admission, change of status, or extension of stay in O-1 classification.
While an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon, there must however be a temporary intent to remain on the part of the O-1 visa holder. The foreign national 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.
NOTE
The dual intent provision, however, does not apply to O-2 visa applicants. Unlike O-1 non-immigrants, the O-2 visa applicants must satisfy that he or she has a residence abroad and no intent to abandon that residence.
3. P Visas
The Immigration and Nationality Act requires that P visa applicants must have a foreign residence which he or she has no intention of abandoning. However, the regulations also provide that 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 alien's admission, change of status, or extension of stay.
Thus, the alien may legitimately come to the United States for a temporary period as a P 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.
NOTE
The dual intent provision, however, does not apply to essential support personnel.
4. E Visas
A limited form of dual intent has been recognized for the E visa classification. Regulations provide that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
However, foreign nationals in E visa classification are required to maintain an intention to depart the United States upon the expiration or termination of their E-1 or E-2 status. The foreign national is required to satisfy that his or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of the legality of their status.
Conclusion
Foreign nationals seeking nonimmigrant visa classifications that do not permit dual intent, including but not limited to B-1/B-2, F-1/F-2, H-3 and H-2B, must generally demonstrate that they intend to remain only temporarily in the U.S. and will return to their home country.
Any clear indication that the foreign national desires or intends to remain permanently in the United States will prevent him or her from obtaining a visa, gaining admission, obtaining an extension or change of status. Foreign nationals seeking a nonimmigrant visa buy also have an intention to pursue permanent residence in the U.S. must consider the limited exemptions given to certain nonimmigrant visa classifications under the dual intent doctrine and consult an experienced immigration attorney on the suitable options available to them to make informed decisions and ensure that their chances of obtaining a visa or extension of stay or change of status are not adversely affected.
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