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Doctrine of Dual Intent - Non-Immigrant Visa Holders

In U.S. immigration law there are two types of visas: immigrant visas and non-immigrant visas.  While there are several different ways one may obtain an immigrant visa there is only one immigrant visa.  On the other hand, there are several types of non-immigrant visas.  The list is too long to name them all here but a couple of the more common non-immigrant visas are the B1/B2 tourist visa; the F1 student visa; the H1B visa; the TN visa; and the J1 visa.  All foreign nationals who hold a non-immigrant visa and present themselves at a U.S. border crossing for and request admission must establish that they do not intend to immigrate or remain permanently in the United States.  In most cases this is not an issue as long as the visa holder can establish that he or she has strong ties his country, has a residence in his country which he does not intend to abandon and is likely to return to his country upon expiration of his authorized stay in the U.S.

However, in some cases the issue of immigrant intent can become a problem for a non-immigrant visa holder attempting to enter the U.S.  While there are many circumstances in which this might become a problem, I will give an example of one situation which is relatively common and which I recently dealt with in my practice.

The F1 student visa is one of the more common non-immigrant visas.  This visa allows a foreign national to come to the United States to pursue a course of study at an approved U.S. educational institution.  The F1 visa is somewhat unique in that foreign nationals who enter the U.S. on a student visa are not given any date certain time to remain in the U.S.  Rather, F1 students are granted permission to remain in the U.S. for the duration of their F1 status.  (This is why custom and border officials write "D/S" on an F1 students entry stamp in their passport.)  Generally speaking, the duration of an F1 students status is equal to the length of time it takes the student to complete his course of study.  For example, if an F1 student enters the U.S. to attend a four year college program the student is authorized to remain in the U.S. for the duration of the four year program (or longer if it takes more than four years) as long as he remains a full time student and otherwise abides by the terms of the F1 visa.  During this time, and the validity period of the F1 visa, the student may travel to and from the U.S.  However, each time the student presents himself for entry at the U.S. border he is required to establish that he does not intend to immigrate.

In a recent case I handled, a high-school student was in the U.S. attending high school on an F1 visa.  His mother recently obtained status as a lawful permanent resident and was planning to file an immigrant visa petition for her son (the F1 student.)  The client contacted me for assistance with this.  During the course of my initial consultation with the client I learned that the F1 student regularly returned to his country to visit his father and planned to continue to do so after his mother filed the immigrant visa petition for him.  The problem with this was that as soon as his mother filed the immigrant visa petition for him, it would be impossible for the F1 student to prove that he did not intend to immigrate to the U.S. on his next reentry to the U.S.  Obviously, this is because he would have expressed an intent to immigrate by the fact that his mother filed an immigrant visa petition for him.  Fortunately, the client contacted me for assistance before they did anything and I advised them that as soon as the mother filed the immigrant visa petition for the son he would not be able to leave the United States without risking being denied entry upon his return.  This was a bit of a problem for the client because the student would not be able to obtain lawful permanent residency for more than two years because of the current backlog of immigrant visas for children of lawful permanent residents.  However, there was no way around this because the legal doctrine of dual intent does not apply to F1 students.

The doctrine of dual intent is a U.S. immigration law doctrine which provides that certain non-immigrants may maintain their non-immigrant status even though they have overtly expressed an immigrant intent by filing an immigrant visa petition.  For example, the H1B visa is a non-immigrant visa to which the doctrine of dual intent applies.  It is permissible for an H1B visa holder to have both non-immigrant (the H1B visa) and immigrant intent.  In the most common case, the H1B visa holder has applied for labor certification and lawful permanent residency based on a petition filed by his or her employer.  However, it may also be the case that the H1B visa holder has a U.S. citizen relative who files an immigrant visa petition for him.  In any case, because the doctrine of dual intent applies to an H1B visa holder, the H1B visa holder does not face the same dilemma as the F1 student should he decide to temporarily depart the U.S. after the immigrant visa petition is filed.

These are just two examples of how the issue of immigrant intent and the doctrine of dual intent can effect non-immigrant visa holders.  The important thing to take away from this article is that all non-immigrant visa holders must establish (each time they present themselves for entry at the U.S. border) that they are not an intending immigrant.  Additionally, it is important that all non-immigrant visa holders understand the impact that the filing of an immigrant visa petition on their behalf may have on their ability to travel to and from the U.S. and whether or not the doctrine of dual intent applies to the particular class of non-immigrant visa which they hold.

If you are a non-immigrant visa holder and have questions about the doctrine of dual intent and would like professional assistance with your case please contact me today for your free email consultation.

Jeff` Moriarty