As an immigration lawyer in Houston and a U.S. citizen, I realize that many people who grew up here seem to think that a person who wants to go somewhere can just go – we watch TV shows about people moving to other countries and never see episodes where they’re not given their visas.
Why do people trying to legally come to the United States get denied that opportunity?
This past week, the denial of visitor visas to a Tibetan women’s soccer team made international headlines. It appeared that the team was deemed not to have a “good reason” to come to the United States to participate in a soccer competition to which they had been invited. While there are questions about the political motivations for denying a Tibetan team visas, the situation illustrates the huge amount of discretion consular officers have to deny visitor visas to applicants.
Our firm gets lots of inquiries from people who know what they want: to come to the U.S., to get a green card, to work for an employer, etc. But those intentions by themselves aren’t enough to know the best course of action. It’s important for people seeking entry into the U.S. or immigration benefits to understand if their actions make sense with their visa classification or the other applications they submit.
As the Tibetan soccer team’s situation shows, your intent will be inferred from the documentation and actions you take. So if your intent is to immigrate to the United States and live here long-term, it’s important to understand that applying for a visitor visa may result in a denial.
Or not – if you are issued a visitor visa and you want to remain in the U.S. long term, you may have issues at the port of entry, or when filing a subsequent immigration application. Understanding the idea of immigrant intent and when it is permitted is the first step in deciding your best course of action.
Nonimmigrant Classifications and the Presumption of Immigrant Intent
The Immigration and Nationality Act specifically states that all foreign nationals are presumed to intend to immigrate to the United States. Put another way, the officials who give out visas (and approve immigration applications) assume that people intend to stay in the U.S. long term, or have “immigrant intent.” It’s up to the people applying for visas to prove otherwise.
People applying for temporary visas (“nonimmigrants”) are only allowed to stay in the United States for a temporary period. So to qualify for a visitor visa, for example, as the Tibetan team sought to, a person/group must overcome the presumption that they have immigrant intent by demonstrating they intend to depart the U.S. before their approved time period to be in the country expires.
You might be asking, Why did the Embassy care whether the Tibetan team had a good reason to visit the U.S. or not? What does that have to do with whether they will leave before their status expires? The purpose of going to the United States is often considered as an indicator of whether the applicant(s) for visas are likely to depart the United States at the end of their stay.
One of the team members was quoted in an article as noting that “What [the Consular officials] said is we don’t have strong reasons to go to Dallas. But I think this is not the reason for them to reject us. [We] think the reason is they think we might run away when we reach there.”
So applicants for nonimmigrant visas need to overcome the presumption of dual intent, by showing a valid purpose for their entry (common examples are visiting friends or family, taking a vacation, attending business meetings, or in the case of student visa applicants, going to school) and by showing that they will return to their home country at the end of their stay in the United States.
Applicants for nonimmigrant visas show their intent to depart the United States by proving they have a residence abroad that they do not intend to abandon (which may be shown by providing proof that the person has a home or other property in the home country, that family members will stay in the home country while the person is in the U.S. or through other connections to their home country or another country other than the United States).
Visas Exempt from Foreign Residence Requirement
There are a few visa classifications that are exempt from the foreign residence requirement: O, E, and TN classifications. Furthermore, although P visa holders/applicants are subject to the foreign residence requirement, like holders/applicants of O, E, and TN visas, the filing or approval of a labor certification or immigrant petition (both of which may ultimately lead to the applicant obtaining permanent residence in the U.S.), should not by itself be basis for the denial of their admission to the U.S., or an extension of status or change of status.
Paradoxically, although a labor certification or immigrant petition should not be the basis of denial of admission, extension or change of status for E-1, E-2, and TN visa holders, holders of these visas still must demonstrate at the time of admission or petition that their intent is to depart the United States upon termination of status and not to adjust status.
What is Dual Intent?
In simple terms, it means having both the short-term intent to stay temporarily (“nonimmigrant intent”) and the long-term intent to stay permanently in the United States (“immigrant intent”). If a nonimmigrant visa classification is considered to be “dual intent,” the person holding that classification or status may simultaneously seek lawful permanent residence and the person’s intent to immigrate permanently to the United States is not a bar to his/her admission.
Visa classifications that are considered dual intent are H-1B, L-1, K and V.
Dual Intent and International Travel
Under the dual intent doctrine, nonimmigrants in valid H-1B or L-1 status may depart the United States without abandoning their pending adjustment of status application and may be able to re-enter the United States on his/her H-1B or L-1 visa rather than through advance parole, as required for other adjustment applicants.
How Can Intent Affect My Immigration Case?
The filing of or approval of an immigrant petition is considered relevant, but not dispositive, evidence in determining whether a foreign national has immigrant intent. Therefore, if you are currently in the United States in nonimmigrant status, it is important to understand whether your status allows for dual intent prior to filing an immigrant petition, and if not, whether you may be subject to the presumption of misrepresentation of intent.
If you are outside of the United States seeking to apply for a nonimmigrant visa, it is important to understand the distinction between “intent” to immigrate and “desire” to immigrate (which are distinguished in case law), and determine if the visa type you are applying for is consistent with your immigration history or goals.
If You are Appling for Permanent Residence…
If you have an approved immigrant petition, there are two ways to obtaining U.S. permanent resident status: adjustment of status in the United States or consular processing at a U.S. Embassy abroad. For applicants who are in the United States, adjustment of status is typically the preferred route due to the shorter processing time, lower fees, and ability to remain in the United States and obtain work authorization while the application is pending.
However, with some limited exceptions, an adjustment of status applicant must have been lawfully admitted to the United States and maintaining nonimmigrant status in order to get the adjustment of status approved. Depending on the visa classification of the applicant, the filing/approval of his/her immigrant petition may have consequences on the continued viability of his/her nonimmigrant status and the approvability of his/her adjustment application.
Unless the applicant is in a nonimmigrant status that permits “dual intent,” he/she risks losing his/her nonimmigrant status and the denial of his/her adjustment application or worst yet, a finding of immigration fraud, unless he/she can show that he/she had no intention of immigrating at the time of his/her nonimmigrant visa application or admission to the United States.
Know Your Options Before You Apply
Your ability and requirement to overcome the presumption of immigrant intent in order to get a nonimmigrant visa or change or extension of status, or your ability to apply for adjustment of status without jeopardizing your nonimmigrant status depends on your particular circumstances and may change depending on intervening events. Therefore, regardless of your desire to immigrate now or later, involve a specialized immigration attorney early on to understand your options and avoid denials of applications.
If you have a question about your immigration status or would like to schedule a consultation with an immigration lawyer in Houston, please call us at (832) 582-0620 or click here to leave us a message:
