Nonimmigrant Visa Denial Because of Dual Intent:

What Is It And How To Avoid It?

Introduction

Many foreign nationals seeking nonimmigrant visas suffer visa denials because they are unable to prove that their intent is to remain in the U.S. only temporarily. The concept of the “presumption of immigrant intent” is unclear for many people.

Under US immigration law, immigration officers must presume that all individuals applying for a nonimmigrant visa have immigrant intent, i.e. the applicant wants to remain in the US permanently. Depending on the visa category, the officer must be convinced that that applicant does not have immigrant intent.

On the other hand, there are a class of nonimmigrant visa categories that are considered “dual intent”. This means applicants who apply in one of these categories should be able to obtain the nonimmigrant visa regardless of the fact that they may want to eventually immigrate to the U.S.

In this article, we’ll give an overview of the “presumption of immigrant intent” as well as the dual intent doctrine.

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1. Presumption Of Immigrant Intent: Why US Visas Are Denied

All nonimmigrants coming to the United States are presumed to have immigrant intent, i.e. the U.S. Consulate abroad assumes that the applicant wants to live in the U.S. permanently. Most nonimmigrant visa applications are denied because the nonimmigrant visa applicant is unable to prove that he or she only has the intent to visit or stay in the U.S. temporarily.

In order to overcome this presumption, the applicant must be able to show that he or she has a residence that they have no intention of abandoning in their home country. According to immigration’s Foreign Affairs Manual, “The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin”.

It is not necessary to have all of the above-mentioned connections, but the consular officer is looking any and all indications that you have every intention of returning to your home country.

The following nonimmigrant visa categories have “residence abroad” requirement: B, F, H (except H-1), J, M, O-2 and Q.

DID YOU KNOW
Some of the most common situations where a consular officer is going to determine that the presumption of immigrant intent cannot be overcome:

  1. The applicant is not gainfully employed, even though he or she is old enough to work and is not studying.
  2. The applicant has no strong family ties in the home country (for example, all or many immediate family members live in the U.S.).
  3. The applicant has a pending or approved immigrant petition filed on his or her behalf or had one in the past.

While the presence of these factors does not necessarily guarantee a denial, the applicant must be prepared to provide ample evidence to overcome the very strong presumption of immigrant intent.

2. The Doctrine Of “Dual Intent”

The Doctrine of Dual Intent essentially states that the nonimmigrant visa applicant may have the intention to immigrate permanently in the future but can also maintain nonimmigrant status right now.

Let’s take an in-depth look at the some of the visa categories where “dual intent” is recognized:

H-1 and L Visa Categories

The H-1A, H-1B & L visa categories are the only employment based non-immigrant visa categories where the dual intent doctrine is officially recognized in the regulations. This means that the statutes specifically state that those in these visa categories don’t have to overcome the presumption of immigrant of intent in order to come to the U.S.

NOTE: While dual intent doctrine is recognized for H-1B visa classification, dual intent does not extend to foreign nationals in H1B1, H-2A, H-2B, H-3 or TN visa classifications.

O Visas

Dual intent appears to be recognized for O-1 visa holders. While not statutorily recognized like the H-1 or L, O-1 visa applicants are not required to maintain a residence abroad. Regulations also provide that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the foreign national’s application for admission, change of status, or extension of stay in O-1 classification.

While an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon, there must however be a temporary intent to remain on the part of the O-1 visa holder. The foreign national may legitimately intend to come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

NOTE: The dual intent provision, however, does not apply to O-2 visa applicants. Unlike O-1 nonimmigrants, the O-2 visa applicants must satisfy that he or she has a residence abroad and no intent to abandon that residence.

 


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P Visas

The Immigration and Nationality Act requires that P visa applicants must have a foreign residence which he or she has no intention of abandoning. However, the regulations also provide that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P petition, a request to extend such a petition, or the alien’s admission, change of status, or extension of stay.

Thus, the alien may legitimately intend to come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

NOTE: The dual intent provision, however, does not apply to P essential support personnel.

E Visas

A limited form of dual intent has been recognized for the E visa classification. Regulations provide that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

However, foreign nationals in E visa classification are required to maintain an intention to depart the United States upon the expiration or termination of their E-1 or E-2 status. The foreign national is required to satisfy that his or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of the legality of their status.


Conclusion

Foreign nationals seeking certain nonimmigrant visas, including but not limited to the B-1/B-2, F-1/F-2, H-3, H-2B and TN must be able to overcome the Presumption of Immigrant Intent by demonstrating that they intend to remain only temporarily in the U.S. and will return to their home country. Any indication that the foreign national desires or intends to remain permanently in the United States will prevent him or her from obtaining a nonimmigrant visa, gaining admission at a port of entry, obtaining an extension or change of status.

Foreign nationals seeking certain nonimmigrant visas, including but not limited to the H-1B/H-4, L-1/L-2, O-1, P and E, do not have to overcome the presumption of immigrant intent as they are covered by the Doctrine of Dual Intent.

If you were denied a visa because you were unable to overcome the presumption of immigrant intent (214b denial), Schedule A Consultation With Immigration Lawyer Today >> to discuss your options. We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.


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