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What Is Dual and Nonimmigrant Intent?

4.75 minute read
"Foreign nationals can come to the United States temporarily to transition to permanent residence. However, most nonimmigrant visas only allow you to come to the US only if you intend to return home. Attempting to transition to permanent residence on certain nonimmigrant visas can lead to long-term severe consequences."
Written by My Visa Source Team
Published on:  Aug 21, 2021
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Foreign nationals can come to the United States temporarily to transition to permanent residence. However, most nonimmigrant visas only allow you to come to the US only if you intend to return home. Attempting to transition to permanent residence on certain nonimmigrant visas can lead to long-term severe consequences. 

For this, one needs to apply for a dual intent visa. A dual intent visa will allow you to travel to the US temporarily to possibly immigrate. However, for most temporary status, you must demonstrate that you have nonimmigrant intent, meaning that you do not intend to immigrate to the US during your stay.

What Is Nonimmigrant Intent?

There are 2 types of US visas: immigrant visas (on the way to obtaining "Green Card", Permanent Resident Card) and nonimmigrant visas (temporary visitors). To apply for a US visa, you will be required to declare your intention to the consular official to meet the eligibility requirements of the particular visa category. Consular officials assume that every applicant has an immigrant intent unless they can demonstrate otherwise. You can be barred from visa fraud if the consular suspects that you are misrepresenting your intention.

How to Prove Nonimmigrant Intent

To be eligible for a nonimmigrant visa, you are required to demonstrate that you do not intend to permanently settle in the US and will not abandon your foreign citizenship while you are in the US. You are only visiting the US temporarily. 

The eligibility requirements for each nonimmigrant visa are different, however, you will be required to prove nonimmigrant intent for most. To determine whether your intention is true, the consular office will consider the following factors:

  • Family and personal ties to each country

  • Work and business opportunities in each country

  • Home owned or leased for the long term in each country

  • Property ties in the form of car, real estate, bank accounts and other investments in each country

  • Social and cultural ties to each country

  • Prior efforts of applying for permanent residence in the US and prior immigration violations, if any

  • The purpose of visiting the US 

What Is the Middle Ground?

The above-mentioned guidelines aren’t rigid and do not apply to all types of nonimmigrant visas. There are many exceptions. For example, F-1 Student Visa applicants are granted some leniency from these rules. The Department of State understands that international students come to the US without employment and family dependents or any substantial assets. 

Therefore, their residence abroad is considered in a broad scope and the main focus is on their short-term intent. This means that an F-1 Visa is granted based on the applicant’s immediate intent, not what might be in the future.

What Are Dual Intent Visas?

Dual intent visas allow foreign nationals to come to the US temporarily with the intent of immigrating to the US. Some types of nonimmigrant visas do not fit the mold of the nonimmigrant intent and inherently contain the possibility that the visitor may apply for permanent residence.

The following types of dual intent visas are available:

K Visas: 

The K-1 Fiance (e) Visa allows a foreign engaged partner of a US citizen to come to the US to marry the US citizen within 90 days. The K-3 Visa allows spouses of US citizens to enter the US while waiting for their Form I-130 petition to be approved. In both cases, spouses and future spouses of US citizens are granted the privilege of immediate relatives.

The K-1 Visa applicants enter the US with an immigrant intent but it is a nonimmigrant visa. The K-1 is a dual intent visa.

H-1B, L-1 and O-1 Dual Intent Visas for Employment: 

The H-1B Visa, L-1 Visa and O-1 Visa are nonimmigrant visas that allow dual intent and grant the applicants a clear path for permanent residence if there is a willing sponsor.

These visas require approval of labor certification or an immigrant visa petition. These visas may allow dual intent, however, at the time of application, the consular requires the applicants to establish that they will voluntarily leave the US once their nonimmigrant visa expires if they fail to obtain a Green Card.

E-2 Treaty Trader Visa: 

The E-2 Visa was created to encourage trade between the US and several other countries with which the US has a trade treaty. This is a dual intent visa that allows applicants to apply for permanent residence through adjustment of status without waiving certain legal rights provided in the trade agreement.

What Is Adjustment of Status?

As an immigrant in the US, if you want to change your status as a nonimmigrant to a permanent resident, then you must file Form I-485, Application to Register Permanent Residence or Adjust Status.

This is known as adjustment of status. To do this, you require an immigration petition filed on your behalf by a family member or an employer. Once this petition is approved, you can adjust your status to a green cardholder.

What Is Preconceived Intent?

The main issue with filing Form I-485 when you are in the US on a nonimmigrant visa is that it brings in questions whether you had a “preconceived intent” of immigration to the US when you initially applied for the visa.

It is plausible that you enter the US temporarily, however, your plans changed genuinely during your stay due to a romantic or job prospect. However, you can not have a preconceived intent of applying for permanent residency while entering the US on a nonimmigrant visa.

A preconceived intent is determined by the USCIS based on you applying for adjustment of status within 90 days of entering the US. This assumption can be disapproved by you demonstrating that your intention changed due to a change in your circumstances.

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