An overview of Non-immigrant Visas (NIV) and “non-immigrant intent” in the COS and AOS situations
A non-immigrant visa is a document that gives an alien the opportunity to apply for admission into the United States for a designated purpose. Since there are numerous types of non-immigrant visas, their purposes cover a broad range, including: allowing an alien to temporarily come to the United States to perform services in an occupation in a highly specialized field that requires distinct theoretical or technical knowledge (H-1b), enabling an alien student to come to the United States to enroll in an institution of higher education (F-1), and many more. While these various types of non-immigrant visas each have their own restrictions and requirements, and the holder’s eligibility for a Change of Status (COS) or Adjustment of Status (AOS) is governed by the USCIS’ examination of the “intent” of the non-immigrant applicant.
Before a non-immigrant visa applicant’s application is approved, a consular officer (at the U.S. Consular/Embassy abroad that the applicant submitted their application to) must first determine whether the non-immigrant actually seeks to enter the U.S. permanently. This precaution is taken because under the Immigration and Nationality Act [INA 214(b), 8 U.S.C. 1184(b)], there is a legal presumption that all persons seeking entry into the United States are immigrants. Therefore, in order for the non-immigrant visa application to be adjudicated, the applicant bears the burden of having to prove “non-immigrant intent:” that he/she (1) has a residence abroad, (2) has no immediate intention of abandoning that residence, and (3) intends to depart the U.S. upon the termination of the visa. These guidelines apply to non-immigrant visa categories,such as:B, F, E, J, M, O-2, P, Q, and TN.However, the Immigration Act of 1990 exempted H-1, L, and V visas from having to prove non-immigrant intent.
Proving Non-Immigrant Intent
In order to prove non-immigrant intent, the applicant must prove to the consular officer that he/she intends to leave the U.S. upon termination of his/her non-immigrant visa. In order to do this, the applicant must prove that he/she has a permanent residence abroad that he/she has no intention of abandoning. In practice, the applicant must also show that the family, social, and economic “ties” that he/she has to their home country are greater than those that they have in the United States. If the consular officer is satisfied that the applicant’s intent aligns with the guidelines of the non-immigrant visa for which they are applying, then he/she will be issued the NIV.
While these guidelines seem to be static, there are exceptions to the rules established by the USCIS. For example, for an applicant applying for an F-1, student visa there is some leniency provided for the applicant. Understanding that the typical student is young, without employment, without family dependents, without substantial personal assets, and often without very specific plans for the future, the Department of State recently instructed visa officers to consider the “residence abroad” requirement for students in a broader light, and instead to focus on the student applicant’s immediate intent. The F-1 applicant’s intent is to be adjudicated based on his/her present intent – not on what that intent might be in the future, specifically during or after a lengthy period of study in the United States. Visa officers are only supposed to assess intent only at the time of application for visa.
Another exception to the guidelines of proving non-immigrant intent is designated for the immediate relatives of U.S. citizens who are traveling to the United States. K-Visas are another type of non-immigrant visa, but they do not follow the same guidelines as some of the others that have been discussed so far. K-visas require a U.S. citizen petitioner to file an application for either an alien fiancé/fiancée or spouse to come and live in the United States. Not only do these types of visas have specific time periods that the alien applicant must abide by, they also have other requirements that must be adhered to by both the alien and the U.S. citizen. Furthermore, while recipients of K-visas must also prove their non-immigrant intentions, these intentions tend to follow a more rigid set of guidelines for approval than say, an F-1 visa.
Thus, while there are specific guidelines that govern each of the non-immigrant visas, it is important to be aware of the special conditions that apply to each. Having this knowledge will be helpful in deciding how to go about proving one’s non-immigrant intent, which will ultimately make the non-immigrant visa application process much smoother.
Change of Status and Adjustment of Status Applications and the Issue of Preconceived Intent
It is not uncommon for an alien to want to apply to change to another non-immigrant status or apply for an adjustment of status to a permanent residence in the United States after the alien arrives in the US, but the process to do so must be done properly to prevent any fraudulentor pre-conceived intent and to prevent potential denial.
Adjustment of Status is an application filed by an alien who is physically in the United States to adjust his or her non-immigrant status to immigrant status, i.e. permanent resident status. The USCIS allows an alien to file an I-485 adjustment of status application after an approval of an immigration petition and visa number availability or concurrently while his/her immigration petition, in some situations, is pending approval. Applying for adjustment of status generally manifests the alien’s immigrant intent and signifies that the alien has reached the final step in getting a Green Card. Once the application is approved, the alien gains permanent resident status in the United States.
However, the issue that arises for non-immigrant visa holders who may want to apply for a Change of Status or Adjustment of Status is that in doing so, it brings into question whether or not the applicant had a “preconceived intent” at the time that they were granted their non-immigrant visa. As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her non-immigrant visa. If an alien files an immigration petition or applies for an adjustment of status within 30 days’ entry into the United States, the USCIS would likely find that the alien entered with a “preconceived intent” to remain in the U.S. and the non-immigrant visa would be classified as fraudulently obtained under the laws. If the alien applies for a change of status or adjustment of status within 60 days of entry, the USCIS could view the change or adjustment with an assumption that he/she had a “preconceived intent” to enter as a non-immigrant. However, the assumption may be rebutted by the applicant with evidence to show a change of circumstances. While it is not a guarantee, if the alien applies for the change of status or adjustment status after 90 days of entry into the U.S., USCIS may not look upon the application negatively. The best practice regarding non-immigrant visas, however, is to abide by the time restrictions that are allotted on the NIV assigned to the alien. [INA 214]
Willa is a J-1 Visa holder (which is a non-immigrant visa available to aliens who fall under the designation of “Exchange Visitor,” so that they may come to the U.S. to partake in educational and cultural exchanges to learn more about American culture). Willa enrolled as a graduate student at the University of Texas to start her “exchange program” and began taking classes to fulfill the requirements of her visa. Under the guidelines of the J-visa, Willa is allowed to remain in the U.S. for 3 years. However, after 1 year of arriving in the US, Willa decides that she would like to adjust her status to permanent resident so she simultaneously files an immigrantpetition and applies for a waiver of the two-year residency requirement. If her immigrantpetition and waiver application are both granted, she may adjusther status to a permanent resident without leaving the U. S.
A Change of Status, on the other hand, is an application filed by an alien who is physically in the United States to change his/her current non-immigrant status, to another type of non-immigrant status. In order to apply for a change of status, the alien would need to file an Application to Extend/Change Non-immigrant Status, form I-539,before the original non-immigrant status expires. The COS application, also requires the applicant to indicate whether he/she has filed an immigration petition or if he/she has applied for an adjustment of status to permanent resident. For example, if a non-immigrant was admitted into the United States on a B-1 Business Visitor visa, he/she might want to change their status to an F-1, Student Visa. The reasons why a non-immigrant visa holder would like to apply for a change of status greatly varies, but a common reason is so that the alien can extend their stay in the United States for alonger period of time or get a working visa status.
Joseph is a B-2 Visa holder (a type of non-immigrant visa that covers short visits for pleasure, such as: tourism or visiting a family member). Joseph applied for and was issued his B-2 Visa based on his intent to visit for the time period specified on his B-2 visa. However, on 35 days in the U.S., Joseph decided that he wanted to change status to another non-immigrant status, such as: an F-1 visa.
Joseph should be cautious when changing from B-2 status to another non-immigrant status as his change of status application is deemed to be fraudulent under the laws. Using the B category as a stepping stone to a different non-immigrant status for the purpose of avoiding the more stringent visa application procedures associated with the new status is improper. The USCIS considers such an act to be fraudulent, since the alien failed to disclose the actual reason for seeking the B-2 visa. In such instances, serious ramifications may result, such as denial of the application of change status by the USCIS. In addition, such behavior could make it extremely difficult to obtain another visa for entry into the United States in the future.
The Dual Intent Doctrine
While most non-immigrant visas only permit the alien to have a non-immigrant intent, , the dual intent doctrine allows certain non-immigrant visas special privileges of having an immigrant intent. Under this doctrine, even though a non-immigrant must demonstrate the intent to remain in the U.S. only temporarily, he/she may have both a short-term intent to leave and a long-term intent to remain permanently or immigrate to the US. The Doctrine of Dual Intent is recognized by USCIS for the H, L, and O visa categories. [8 C.F.R. 214.2(h)(16), (l)(16), (o)(13)]
The guidelines for H, L, and O-1 visas are as follows:
Generally, dual intent visa holders are allowed to apply for an adjustment of status (AOS) and/or a change of status (COS). Unlike other non-immigrant visas that require a non-immigrant visa holder to wait either 30, 60, or 90 days to apply for an AOS or COS, H, L, and/or O-1- Visa holders are allowed to apply for an adjustment of status or change of status at any time after they arrive to the United States. Furthermore, under the doctrine of dual intent an alien’s H, L, or O-1 visa will not be presumed fraudulent if he/she decides to apply for an AOS or COS because as dual intent visas, they are not limited to only one non-immigrant intent. In order for a non-immigrant visa holder to be eligible to apply for an adjustment of status, the alien must be lawfully in the U.S. (except for immediate relatives, battered spouses and children, and special immigrants) and a visa number must be immediately available at the time of the filing of the petition to adjust status. [INA 245, 8 U.S.C.1255]
According to the Immigration and Nationality Act [INA 248], dual intent visas holders can also change from one non-immigrant visas to another, pursuant to [INA 248] on Form I-539. All non-immigrant temporary workers, except family members who use I-539, must use I-129. To change status, an applicant must be in lawful status and absent extraordinary circumstances. [8 C.F.R. 248.1(b)].Requests for extensions or change of status are filed on I-129. I-539 must be filed for accompanying family members. [8 C.F.R. 214.2(h)(2). The agency interprets lawful status to include not only up to the time of filing, but up to the time the new status becomes operative.
In a visa application from a Consular Office abroad, the DOS has also determined that if an H-1 or L visa holder obtained a change of status, then the fact that he/she “is the beneficiary of an application for a preference status, or has otherwise sought permanent residence…shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a non-immigrant. Since dual intent exists for those in H-1 and L status, these persons can file for an extension even after they file an application for an adjustment of status. Therefore, those who qualify for a non-immigrant visa under the protection of the dual intent doctrine, are able to apply for an adjustment of status or a change of status without being accused of fraudulently applying for their visa nor for providing a falsified non-immigrant intent. [8 C.F.R. 214.2(h)(16), (l)(16), (o)(13)]
(1) Emily received her PhD.in electrical engineering from a prestigious university in India and wishes to come to the U.S. to work. With her employer’s sponsorship, Emily applies for and receives an H-1B visa, which allows her to come to the U.S. and work in a specialty occupation temporarily. However, on 15 daysof Emily’s arrival to the US, Emily decides that she would like to become a permanent resident. Therefore, Emily could petition for an immigration petition under an EB-1(a) or a NIW. Thepetition would not be denied because of presumed fraud, because as a dual intent visa holder, Emily is allowed to have the intent to stay temporarily or permanently. She can continue working legally under her H-1B visa, while she awaits the approval of her I-140 petition.
(2) Eric is a world renowned basketball player from Spain. A junior NBA basketball teamin the US petitioned for an O-1 visa for Eric, and when he was approved, came to the United States to continue playing basketball for that team. Eric has been playing basketball in the U.S. for one month and he has decided that he would like to apply for a change of status because he thinks that it is too challenging for him to get onto an NBA team and would like to enroll in culinary school. Therefore, Eric could petition for an F-1 visa to attend culinary school. Eric could legally continue playing basketball while he awaits the approval of his form I-539 or he may stop playing and wait in the US for his change of status application.
(3) John is an executive employee at a growing business company, headquartered in China. The company just recently expanded into more markets and created a satellite office in the United States. In order to provide detailed managerial support for the company, the company President filed a petition for an L-1 Visa for John at the U.S. Consular Office in China, but John had previously applied for an immigrant petition to enter into the U.S. Under the dual intent status, the U.S. Consular Officer at the U.S. Consular Office abroad and the USCIS Officer at the border would not be able to deny John based on this previous intent to immigrate. Furthermore, if John wanted, once he entered the U.S., he could apply for a change of status or adjustment of status from his L-1 status, without being accused of presumed fraudulence.
However, if the President of the company filed a petition for a regular non-immigrant visa (one that is not protected under the doctrine of dual intent, like a B-1) and John had previously applied for an immigrant petition to enter into the U.S., there is a possibility that the non-immigrant visa application could be denied. This potential denial is because other non-immigrant visa applicants have to prove that they have non-immigrant intent and in this situation, John had already proven that he intended to immigrate to the United States.
(4) Jack is currently an F-1 visa holder (student visa) and has been enrolled in a prestigious university in the U.S. for 2 years. Jack had previously applied for an adjustment of status, but his petition was not approved. After waiting more time, Jack then decided that he would like to apply for a change of status to an H-1B. His potential employer is willing to sponsor him and files the petition for Jack’s H-1B visa. Under the protection of the doctrine of dual intent for an H-1B, Jack’s application cannot be denied based on his previous immigrant intent. Therefore, Jack could legally continue with school on his F-1 visa, while he awaits the approval of his H-1B petition.
However, if Jack attempted had previously applied for an adjustment of status and was not approved, then applied for a change of status to a visa that requires a non-immigrant intent, such as a J-1 visa, his application may have a risk of being denied. This is because Jack would have already exhibited his intent to immigrate.
As seen through the examples and information listed above, it is important to be aware of the guidelines regarding non-immigrant/dual intent when applying for an adjustment of status or change of status. Whereas dual intent visas (H, L, and O-1) do not have to prove non-immigrant intent because these visa holders are allowed to intend to remain in the U.S. permanently or temporarily and can apply for a COS/AOS without the chance of denial based on presumed fraudulence. Other non-immigrant visas (B, F, E, J, M, O-2, P, Q, and TN), however, have to prove that they have non-immigrant intent, or the application for a COS/AOS filed shortly after one’s arriving at the US could be denied on the basis of presumed fraud. Therefore, it is best to manage one’s timing to apply for an AOS or COS so that the application process is much smoother.
8 C.F.R. 214.2(h) (16): “The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B 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.”
8 C.F.R. 214.2(l) (16): “An alien may legitimately come to the United States for a temporary period as an L-1 nonimmigrant and, at the same time, lawfully seek to become a permanent resident of the United States provided he or she intends to depart voluntarily at the end of his or her authorized stay. The filing of an application for or approval of a permanent labor certification, an immigrant visa preference petition, or the filing of an application of readjustment of status for an L-1 nonimmigrant shall not be the basis for denying.”
8 C.F.R. 214.2(o) (13): “Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O–1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately 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.”
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