Dual intent is an United States immigration law concept. It generally refers to the fact that certain U.S. Visas allow foreigners to be temporarily present in the USA with lawful status and immigrant intent. This allows those visa holders, particularly H-1B professionals, 'to enter' the U.S. while simultaneously seeking lawful permanent resident status (green card status) at a port of entry. Otherwise, visa holders 'may' be presumed to have immigrant intent and can be kept from entry (summarily excluded) as a matter of law.
If immigrant intent is presumed, based inferences made by consular or DHS Border review, this is grounds for termination of non-immigrant visas issued, refusal of the visa application, refusal of admission at the port of entry, refusal of readmission or removal (deportation). Further, if a border or consular official believes that a visa holder is intentionally misrepresenting themselves, then the applicant for entry into the U.S. can also be permanently barred for visa fraud. Unless the foreigner holds a dual intent type visa, then they are subject to review for immigrant intent each on each visit to the United States and its Territories.
Certain types of foreign visitors are allowed dual intent, and other categories of visitors are not. Persons with H-1B visas (for specialty workers), L-1 visas (for corporate transferees), and V-visas (spouses and children of lawful permanent residents) are permitted to have dual intent under the Immigration and Nationality Act[1]. Federal regulations also appear to recognize dual intent O-1 visas (for workers who have extraordinary ability), P-visas, and E-visas.[2]
Most other foreign visitors and workers, like those on B-1 business, B-2 tourist, F-1 student, journalism, and entertainer visas should not have immigrant intent, as discussed above. Such visa holders can be denied admission if the consular or port official "reasonably believes" that they have interest in permanently remaining in the United States. (i.e. in pursuing a green card). Certain activities may appear likely to lead to U.S. permanent resident status in the belief of an experienced Government Official.
One such questionable situation is an upcoming marriage with a U.S. citizen or permanent resident without a K-1 fiance visa. Nevertheless, there are times when individuals who are married to U.S. citizens are allowed into the United States on tourist visas or visa waivers. Such applicants for entry must demonstrate to the satisfaction of the consular or port official that their trip is temporary. That is, that they are likely to return to their country of citizenship, because they have no interest in immigrating for the purposes of the entry in question.
Some confuse an example of immigrant intent presented in a footnote within the Foreign Affairs Manual. This footnote is inappropriately 'called' as the 30-60 day rule. This relates to the presumption of immigration fraud by consular officials[1]. If a person enters on a non-immigrant visa, such as a B-2 visa, but 'soon after' works without USCIS authorization or marries a U.S. Citizen or Permanent Resident, then a consular official can presume visa fraud and deny all future visa applications. This 30-60 day concept has little to do with dual intent. This footnote guides consular officials on the intention of the U.S. Government to deter those from entering, who intend to abuse the non-immigrant visa system based upon Immigration and Naturalization Sections 214(b) or 212(a)(6)(C)(i).
Most visas do not allow dual intent. Those who have concerns should contact an experienced immigration and visa attorney. The American Immigration Lawyers Association [2], among other bar associations in the United States, can provide the name of an experienced immigration and visa law attorney. This attorney may be best qualified to discuss the legal concept of dual intent to provide succinct legal advice on whether a visa holder's immigrant intent, if any, will affect them.
References
- ^ http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act
- ^ http://www.americanlaw.com/dintent.html
Categories: United States immigration law | Immigration to the United States
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