Dual Intent H1B Visa Info vs Nonimmigrant Visa

Dual Intent H1B, L1, H4 Visas vs Nonimmigrant Intent F1, B1? 214(b)?

In US Immigration - Visas by KumarUpdated : 2 Comments

Any foreigner planning to go to America need to get a US Visa at an American Consulate/ Embassy in their home country.  If they are applying for a Non-immigrant Visa, then the US Visa/ Consular Officer would look at the intent of the visa applicant, if it is either non-immigrant or immigrant and either issue visa or reject visa under Section 214(b).  Also, few visas like H1B, L1 are classified as “Dual Intent” visas. In this article we will look at all the basics of intent, dual intent in US visa context and review official guidance on the same from USCIS and US Department of State with references.

What is “Intent” of a Visa applicant in context of US Immigration?

The broad term “intent” in context of US immigration refers to the actual intention of the visa applicant regarding their long-term plans in US. What does the applicant plan to do after their purpose of visa is complete or once their visa term is expired… The intent is primarily looked at, if the individual’s intent is to come back to their home country or settle down in US without returning.  For example, when granting a B1/ B2 Visitor visa or F1 Study visa, the visa officer looks at various factors to assess the intent of the applicant to return to their home country after their visit or study is complete.  An individual’s  intent in context of US immigration is primarily classified as either immigrant or non-immigrant.  

What is Immigrant Intent? What are Immigrant Visas?

If an individual entering US does not plan to come back to their home country/ residence after their purpose of visit in US is complete or if their intention is to apply for green card and become permanent resident in US, then that individual is classified to have an immigrant intent.  On the same lines, a visa given to such an individual to live permanently in US is called an immigrant visa. Examples are DV1 – Diversity Immigrant Visa, CR1- Spouse of US Citizen, etc. Check complete Immigrant Visas list on State.gov

What is Non-immigrant Intent ? What are Non-immigrant Visas ?

If an individual plans to come back to their home country/ residence after their purpose of US visa is complete or after their allowed visa period in US expires, then that individual is classified to have nonimmigrant intent.  On the same lines, a visa given to such an individual, who plans to visit US for temporary visit, work or study, etc. and intend to come back to their permanent residence outside of America is called non-immigrant visa. Examples are B1/ B2 Visitor Visa, F1 Student Visa, etc. Check out various US Non-immigrant Visas

What is “Dual Intent” in context of US Immigration? What are Dual intent Visas ?

The concept of “dual intent” comes in, when a non-immigrant visa holder has the option to apply for green card to become permanent resident and settle down in US. Technically, a non-immigrant visa holder should have non-immigrant intent as described above, but due to this special option to apply for Green Card or take steps towards permanent residency, their intent is classified as “dual intent”.  It came into effect from the immigration Act of 1990. This dual intent is only applicable to handful of non-immigrant visas like H1B Visa, L1 Visa, O-1 Visa.  With “dual intent” option, H1B or L1 visa holders can apply for adjustment of status in US to become permanent residents in US. Below is the screenshot of dual intent from official reference on USCIS.

Dual Intent for H1B - L1 Visa Holder USCIS Official

What does “Dual Intent” mean for H1B, L1 Visa Holders for Visa Stamping ?

What this means is that the US visa / consular officer cannot deny H1B or L1 visa during visa interview based on the intent of the individual that they will not return home country after their 3 years of H1B or L1 Visa. That’s why you see primarily H1B and L1 visa holders getting 221(g) forms for various reasons that ask for the details of role, client, contracts, company info, etc. instead of the ties of the individual to home country or residence.  Below is the screenshot of guidance from official Field Adjudication manual (FAM) on State.gov

Dual Intent of H1B - L1 Visa Holders in FAM

What is different for F1 or B1 Visa with Non-immigrant Intent ?  Visa Denial 214(b) ?

Unlike H1B or L1 visa, for general non-immigrant visas, the visa officer looks for ties to the home country and the intent of the individual to return home after their purpose of visa is over or their visa term expires.  This is why you see all F1 Student visa or B1/B2 Visitors visa applicants carry all sorts of documentation related to Home, Job, Businesses, Financial Assets, talk about family ties to convince the visa officer that they intent to return home after their visa term expires.  If the visa officer is not convinced, they would reject visa under Section 214(b) of Immigration and Nationality Act (INA). Which basically tells that the visa officer believes that the applicant would not return home after their visa term expires or their purpose of visit is complete.  The only good part with 214(b) denial is that, it is not permanent and you can apply for visa stamping again, if you believe your circumstances have changed or you want to give it another shot.  Below is the screenshot of official guidance on State.gov

214b Nonimmigrant Intent Denial Reason Info

Does H4 Visa also fall under dual intent visa?

Yes, for the most part H4 visa holder falls under dual intent, except in one case, where H4 Holder “cannot establish a bona fide relationship” with the H1B applicant. Essentially, what it means is that, if the H4 holder cannot show the proper relationship i.e. Marriage or Children relationship to the H1B holder, then their visa can be denied under 214(b). See below the guidance from FAM on State.gov

H4 Visa Dual Intent Rule

Also, when a foreigner enters US with a valid US visa and goes through US Port of Entry Procedures, it is up to the discretion of the CBP ( Customs and Border Protection) officer at port of entry to assess the intent of the individual and then only allow the individual into US. Having a visa does not guarantee entry to the US.

What do you think of the dual intent option for H1B and L1 Visa Holders? Your thoughts ?

   

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Comments ( 2 )

  1. Girish

    Hello Kumar,
    First of all a big thank you for providing us with so much of useful information on Redbus2US.com.
    I have a query on my current status which goes like below and your inputs will certainly help me to plan my stay in USA accordingly.

    #1. My L1B VISA Petition was approved in May 2015 , the petition and VISA was approved for 3 years i.e till May 2018 .and accordingly i traveled to USA and completed my tenure of Petition i.e 3 years.

    #2. In May 2018 ( Post completion of 3years) ,i applied for VISA extension for the same petition from USA.

    #3. My Extension request was denied in Jan 2019 by USCIS and during the period between May 2018-Jan2019 while my Extension request was pending with USCIS ,i was working for my employer as it is Legal to work while you extension request is pending. ( tenure is 8 months)

    #4. I traveled back to India in Jan 2019 and continued to work for my offshore subsidiary of the same Company till August 2019. (tenure is 7 months)

    #5. In August 2019 , My employer applied for Fresh L1 petition with Consulate and my application was approved. My petition was for 18 months only ( 5 years -(minus) my earlier stay ( 60 months – 42 month =18 months) .
    While approving the consulate gave approval as below :
    –> Petition approved for 18 months
    –> VISA approved for 3 years

    #6 I traveled back to USA in September 2019 and my I94 was issued for 3 years , Summarizing it as below :
    –> Petition approved for 18 months
    –> VISA approved for 3 years
    –> I94 for 3 years

    Now the question is :

    1. Will i be able to extend my petition after my current petition is expired (after 18 months) as i have a valid VISA and I94 for 3 years ? ( Please note that this is a new petition from my earlier Stay on L1B)

    2.My Petition1 was expired in May 2018 and my new Petition (Petition2) is approved in August 2019 and the gap between 2 petitions is more than 1 year ,so willi be able to get my full 5 year term for Petition2 ? (Please note that even though my first petition i.e Petition1 was expired in May 2018 but i had applied for its petition and stayed in USA till Jan 2019 waiting for result.

    3.Is the 1 year cooling period rule between a petition expiry and another approval or is it between 2 travels ?

    4. If the cooling period is between travel then i am not sure how the consulate approved my VISA for 3 years even though my travel GAP was for only 7 months? (Any Idea ).

    Your inputs will certainly help me to plan my stay.
    Apologies for too much explanation and bit too many queries but i am a bit confused.

    Thanks and Regards,
    Girish

    1. administrator
      Kumar

      1. If you have not stayed outside of US for 1 year, your clock does not reset, you only get 5 years.
      2. Your stay in US is what counts in general. Talk to an attorney on how they will assess.
      3. it is 1 year
      4. Well, it is quite possible as they may not be aware of the subtle clock and timing with USCIS. Visa just is entry permit, you cannot stay in US, just because you have visa. Read US Visa vs Status

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