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.
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
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
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
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 ?