Dual intent is a
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
immigration law concept. It generally refers to the fact that certain
U.S. visas allow foreigners to be temporarily present in the U.S. with lawful status and immigrant intent. This allows those visa holders to enter the U.S. while simultaneously seeking
lawful permanent resident status (green card status) at a port of entry. Otherwise, visa holders may be presumed to have immigrant intent and can be kept from entry (summarily excluded) as a matter of law.
"Dual" refers to 1) the holding of a nonimmigrant visa, and 2) the intention to immigrate. In contrast, a greencard holder is an immigrant (with intent), and a H-2B holder has a visa with intent to not immigrate.
If immigrant intent is presumed based upon inferences made by consular or
Department of Homeland Security
The United States Department of Homeland Security (DHS) is the U.S. federal executive department responsible for public security, roughly comparable to the interior or home ministries of other countries. Its stated missions involve anti-terr ...
's border review, this is grounds for termination of nonimmigrant visas issued, refusal of the visa application, refusal of admission at the port of entry, refusal of readmission, or removal (deportation). Further, if a border or consular official believes that a visa holder is intentionally misrepresenting himself, then the applicant for entry into the U.S. can also be permanently barred for
visa fraud
Visa fraud has different criteria in various parts of the world but the commonly accepted points are the sale, provision, or transfer of otherwise legitimate visas, misrepresentation of reasons for traveling and forgery or alteration of a visa.
...
. Unless the foreigner holds a dual intent type visa, the foreigner is subject to review for immigrant intent on each visit to the United States.
Certain types of foreign visitors are allowed dual intent, and other categories of visitors are not. Persons with
H-1B visa
The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H) that allows U.S. employers to temporarily employ foreign workers in specialty occupations. A specialty occupation requires the application of ...
s (for specialty workers and their spouses and minor children with
H-4 visa
An H-4 visa is a United States visa issued to dependent family members of H-1B, H-1B1, H-2A, H-2B, and H-3 visa holders to allow them to travel to the United States to accompany or reunite with the principal visa holder. A dependent family mem ...
s),
K visa A K-1 visa is a visa issued to the fiancé or fiancée of a United States citizen to enter the United States. A K-1 visa requires a foreigner to marry his or her U.S. citizen petitioner within 90 days of entry, or depart the United States. Once ...
s (for fiancees or foreign spouses of US citizens and their minor children),
L visas (for corporate transferees and their spouses and minor children), and
V visa
The V visa is a temporary visa available to spouses and minor children (unmarried, under 21) of U.S. lawful permanent residents (LPR, also known as green card holders). It allows permanent residents to achieve family unity with their spouses and c ...
s (spouses and minor children of
lawful permanent residents
Permanent residency is a person's legal resident status in a country or territory of which such person is not a citizen but where they have the right to reside on a permanent basis. This is usually for a permanent period; a person with suc ...
) are permitted to have dual intent under the Immigration and Nationality Act. Federal regulations also appear to recognize dual intent
O visa
An O visa is a classification of non-immigrant temporary worker visa granted by the United States to an alien "who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extra ...
s (for workers who have extraordinary ability and their spouses and minor children),
P visa
P visa is a type of temporary employment visa of the United States, granted to alien athletes, artists, and entertainers, and their spouses and children. The term "P" refers to (a)(15)(P), Section 101 of the Immigration and Nationality Act.
P ...
s (for athletes, artists or entertainers and their spouses and minor children), and
E visas (for treaty traders or treaty investors and their spouses and minor children).
Most other foreign visitors and workers, like those on
H-2B
H-IIB (H2B) was an expendable space launch system jointly developed by the Japanese government's space agency JAXA and Mitsubishi Heavy Industries. It was used to launch the H-II Transfer Vehicle (HTV, or ''Kōnotori'') cargo spacecraft for ...
worker, H-3 trainee/worker,
B-1 business,
B-2 tourist,
Visa Waiver Program
The Visa Waiver Program (VWP) is a program of the United States federal government that allows nationals of specific countries to travel to the U.S. for tourism, business, or while in transit for up to 90 days without having to obtain a visa. It ...
visitor,
F-1 student,
J-1 exchange visitor,
M-1 student, journalism, and entertainer visas should not have immigrant intent, as discussed above. Such visa holders can be denied admission if the consular or port official reasonably believes that they have interest in permanently remaining in the United States (i.e., in pursuing a
green card
A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. ("The term 'lawfully admitted for permanent residence' means the status of having been ...
). Certain activities may appear likely to lead to U.S. permanent resident status in the belief of an experienced Government Official.
While similar to the H-1B visa, the H-1B1 visa (for Chilean and Singaporean nationals) is not dual intent.
Some confuse an example of immigrant intent presented in a footnote within the Foreign Affairs Manual. This footnote is called the 30- to 60-day rule. This relates to the presumption of immigration fraud by consular officials. If a person enters on a non-immigrant visa, such as a B-2 visa, but soon after works without USCIS authorization or marries a U.S. citizen or permanent resident, then a consular official may presume visa fraud and deny all future visa applications. This 30- to 60-day concept has little to do with dual intent. This footnote guides consular officials on the intention of the U.S. government to deter those from entering, who intend to abuse the non-immigrant visa system based upon Immigration and Naturalization Sections 214(b) or 212(a)(6)(C)(i).
There are times when individuals who are married to U.S. citizens are allowed into the U.S. on tourist visas or visa waivers. Such applicants for entry must demonstrate to the satisfaction of the consular or port official that their trip is temporary. That is, that they are likely to return to their country of citizenship, because they have no interest in immigrating for the purposes of the entry in question.
Most visas, including B-1/B-2 visas and visa waivers, do not allow dual intent.
Intent to remain in the United States permanently at time of entry is not the same as a general desire to remain in the United States permanently, which is technically allowable.
[On the Matter of Hosseinpour]
. ''U.S. Board of Immigration Appeals''. via U.S. Department of Justice.
References
{{DEFAULTSORT:Dual Intent
United States immigration law
Immigration to the United States