What Is Dual Intent?
Intent and US Immigration Law
Generally, US immigration law is governed by intent. That is, when a US consulate outside of the United States is making a determination of whether a visa application should be granted, the Consular Officer will consider whether the applicant is maintaining significant ties to her home country, such as a residence, immediate family and/or a job that she has no intention of abandoning. If the Consular Officer determines that an applicant does indeed have significant ties to her home country, then, assuming the applicant is qualified, a US visa will be granted. However, if the Consular Officer believes that sufficient ties to the home country do not exist such that the applicant is likely to remain in the US past her visa expiration date, then the visa may be denied on this basis.
A problem arises, of course, when an individual has a pending green card application, but they hold a temporary US visa or temporary visa status, or they are making an application for a temporary US visa or petition for visa status.
The concept or legal fiction known as “Dual Intent” becomes important when a person holding or applying for a temporary visa, or temporary visa status, wants to obtain a green card (permanent residence). Certain US visa categories automatically allow for dual intent, or the intent to have a temporary visa status while at the same time having the intent to remain permanently in the United States.
The concept of Dual Intent assumes that a person with such Dual Intent will, although she has an intention to reside permanently in the US upon approval of the appropriate immigrant visa or adjustment of status application, she will not stay in the US beyond the time her visa or visa status expires.
Visa categories that specifically allow for such “dual intent” include the H-1A visa, H-1B visa and L visa categories, the most common visa categories for temporary workers.
Those holding visas or status in other categories such as the O-1 may run into a problem with intent when attempting to obtain a US visa at a US consulate outside of the US, or when attempting to enter the United States at a US port of entry or border. So those who either have O-1 status or who are contemplating O-1 status should consult an immigration lawyer about intent issues should they have any interest in obtaining a green card some time in the future.
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