The Immigration and Nationality Act (1952) operates under the presumption that all persons coming to the United States - even on nonimmigrant visas - intend to remain permanently. In order to qualify for a nonimmigrant visa, an applicant must overcome the presumption of immigrant intent. However, the INS recognizes that individuals can simultaneously have the intent to remaininthe US tmeporarily and alsohave a future intent to become a lawful permanent resident, known as dual intent.

Dual intent is statutorily recognized for H-1 (temporary workers), L (intra-company transferees) and V (family reunificaton) visa holdres, and also recognized by the DHS for E visa holders. If not seeking entrance under the above nonimmigrant visa categories - which ecognize dual intent, an individual who seks to be inthe US as a nonimmigrant and has any indicationthat he or she desires or intends to remain permanently, can run into problems in attempting to gain admission, obtain an extension, or change status as a nonimmigrant.

In order to avoid being placed in removal proceedings and be deported, a person must maintain legal status at all times. A person may seek to remain by obtaining an extension that keeps the person in the same status, or by seeking a change of status, which is a request to move from one nonimmigrant classification to another, or an "adjustment of status which seeks a transition from nonimmigrant to Legal Permanent Residency status.

A person should file his or her change of status request in a timely manner - while he or she is still within the period of his or her authorized stay; the essential requirements are that the person is:

• Persons from visa waiver countries do not need to obtain visas to enter the Unitede States as tourists or visitors for business; though are they are inspected at arrival and are subject to the decision whether to be admitted;
• A person seeking entrance in the U.S. under VWP is subject to all of the grounds of inadmissibility; and if it appears that the request will be denied, may seek a withdrawal of the application to avoid furhter inadmissibility consequences;
• A person admitted under VWP may not remain longer than 90 days (though may be permitted to stay for a shorter period):
  • This period cannot be extended except for emergency reasons, and the person canot change nonimmigrant status, or be allowed to adjust status to that of an LPR unless he or she is seeking permanenet residency based on marriage to a U.S. citizen or as the child or parent of a citizen. M visa (vocational students may not change to an F visa (academic students) or to an H visa (temporary workers).

 

DUAL INTENT NONIMMIGRANT VISAS

Temporary and Dual Intent Concepts

The permanent resident process is almost alway by petition, and the person or company who petitions for the applicant of the permanent resident visa has control over the petition. The employer or relative cannot be forced to file or to continue to support the petition, and can withdraw or cancel the petition at any time before permanent resident status is granted.

All people who enter the U.S. on a nonimmigrant visa are considered to be in the U.S. temporarily. the law believes that those entering on a nonimmigrant visa intend to return to their home country at the end of their stay in the U.S. A person in the U.S. on temporary nonimmigrant visa who starts the permanent residence process, is viewed by the law to have lost the intent to stay temporarily. In most circumstances, person in the U.S. on a nonimmirant visa who remains in the U.S. and does not need to renew the temporary visa, change of intent is not a problem. However, the nonimmigrant visa holder must travel outside the U.S., or must apply for an extension of nonimmigrant visa, may encounter problems with his or her change of intent application.

There are a few nonimmigrant categories that allow a person to have dual intent (to intend to be in the U.S. temporarily and eventually immigrate). For these categories, international travel and extensions of stay are not a problem. Howver, these categories have limitations, and require special planning. The most common dual intent visas are the H-1, B, L, and E visas.

 

CHANGE OR EXTENSION OF NONIMMIGRANT VISAS

United States Citizenship and Immigration Services (USCIS) approval of the nonimmigrant visa change of status petition.

Under current procedures, a new I-94 Departure Record is created as part of the USCIS's Notice of Action. The holder should cut the right half of the lower portion of the original enclosed Approval; this becomes the new I-94 and hsould be stappled to the person's passport with his or her other I-94, and should follow the instructions on the form.

It is important to understand that USCIS does not issue "visas"; it only regulates the "status" of foreign nationals in the U.S. A nonimmigrant visa holder who leaves the U.S. needs to obtain new nonimmigrant visa at his or her home consulate before returning. To obtain a new visa, the person will need the original of the approval form along with the left side of the lower part of the appproval! Otherwise, the person cannot return to the United States! (There is an exception for trips to Canada or Mexico for less than 30 days the holder to retain the original I-94 card, and attached approval notice, and return with them.) Upon approval of the change of status petition, the holder will be able to lawfully remain in the U.S. for the time stated on the approved petition.