Nonimmigrants Must Overcome Presumption of Immigrant Intent29 Jun 2017
Under U.S. immigration law, if a foreign national applies for a nonimmigrant visa or for admission to the United States as a nonimmigrant, the application often can only be approved if the individual can demonstrate a lack of immigrant intent. There are a few notable exceptions to this general rule, such as for H1B and L-1 applicants. Most other foreign nationals who wish to come temporarily to the United States must overcome the automatic legal presumption of immigrant intent.
Maintaining Ties Abroad in Home Country
For many visa categories, including F-1, B-1/B-2, and J-1, the foreign national must maintain a residence abroad, with no intention of abandoning it, in order to demonstrate nonimmigrant intent. In addition to providing evidence of the dwelling (e.g., house, apartment) in which the applicant actually resides, it is necessary to also detail other ties to the country of origin. Evidence of permanent employment abroad, strong financial or business ties, or close family ties (assuming the family is not also traveling to the United States) can all be used to show a lack of immigrant intent. Documentation showing that the applicant has previously engaged in international travel, whether to the United States or elsewhere, can help to show stronger ties to one’s residence abroad.
214(b) Refusals Based on Presumption of Immigrant Intent
The burden is generally on the visa applicant to overcome the presumption of immigrant intent, and it is at the discretion of the consular officer to determine whether the burden has been met. This wide discretion can lead to a lack of uniformity as to how this concept is applied. Regardless, if the applicant fails to evidence sufficient ties to the country of origin to the satisfaction of a consular officer, the visa typically will be refused pursuant to INA §214(b).
Doctrine of Dual Intent
Under the Immigration and Nationality Act (INA), the L-1 and H1B categories, and corresponding L-2/H-4 dependent classifications, are expressly exempted from the presumption of immigrant intent. This is often expressed as “dual intent,” meaning that such persons may intend to enter temporarily as a nonimmigrant, but may also intend to permanently immigrate to the United States at a later date.
Several other nonimmigrant categories, including O-1 and P-1, enjoy a sort of quasi-dual intent status. Although the INA does not exempt such applicants specifically from the immigrant intent requirement, the applicable regulations prevent requests for such classifications from being denied based merely on having an approved labor certification or immigrant petition.
It can be difficult to define and quantify the idea of immigrant intent, but this concept plays an important role in U.S. immigration law. Foreign nationals hoping to travel to the United States in a nonimmigrant status should be familiar with this notion, and the steps that must be taken to overcome the presumption of immigrant intent.
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