Written by Henry J. Chang

A common requirement for nonimmigrant eligibility is that an alien seeking such classification has nonimmigrant intent rather than immigrant intent. In other words, an alien may not intend to remain permanently in the United States (i.e. immigrant intent) without jeopardizing his or her nonimmigrant status. This requirement usually manifests itself as:

1. a need to maintain an unabandoned foreign residence abroad; and
2. a presumption that the alien is an immigrant until the contrary is established.

However, not all nonimmigrant categories are subject to these requirements. Where they do not apply, it is often possible to apply the doctrine of “dual intent”. Dual intent means an intention to immigrate at some time in the future while properly maintaining a nonimmigrant status in the present.  The presumption of immigrant intent arises from INA §214(b), which states in part:

Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).

INA §214(b) clearly exempts H-1 (but not H-2 or H-3) and L nonimmigrants from this presumption.

The exemption of H-1 and L nonimmigrants from the presumption of immigrant intent resulted from §205(b)(1) of the Immigration Act of 1990 (“IMMACT 90”), Pub. L. No. 101-649, 104 Stat. 4978; effective October 1, 1991. While the requirement to maintain an unabandoned foreign residence abroad never applied to L nonimmigrants, §205(e) of IMMACT 90 eliminated the foreign residence requirement for H-1 nonimmigrants.

As a result, both the Immigration and Naturalization Service (“INS”) and the Department of State (“DOS”) recognize the concept of dual intent for H-1 and L nonimmigrants. Pursuant to 8 CFR §214.2(h)(16)(i), neither the approval of a labor certification nor the filing of a preference petition for the alien will themselves result in the denial of an H-1B or L petition, or a request for an extension of such a petition, or extension of stay, or change of status. DOS cable no. 91-State 171115 para. 2 (May 24, 1991), states that the requirement of “entering temporarily” has been effectively eliminated for H-1 and L-1 applicants and their accompanying family members. The doctrine of dual intent also extends to H-4 and L-2 dependents.

While IMMACT 90 statutorily recognized only the H-1 and L categories, the INS effectively recognizes the concept of dual intent for E nonimmigrants as well. The INS position is based on the fact that the definition of the E category in INA §101(a)(15)(E) does not require the alien to have a foreign residence which he or she has no intention of abandoning.

Dual intent is not recognized for TN workers. INA 214(e)(2) provides that the TN category is to be treated as a regular admission class under §101(a)(15) of the Immigration and Nationality Act (“INA”). It is therefore subject to INA §214(b). However, it is arguable that dual intent should be recognized for the TN category in light of the fact that the INA does not specifically require a TN worker to maintain a foreign residence abroad. Further, a 1996 letter from Yvonne LaFleur, Chief of the Business and Trade Branch at the INS’ Benefits Division, suggested that a TN worker who was the beneficiary of an approved immigrant petition could still have nonimmigrant intent, if the alien intended to consular process his or her immigrant case rather than adjust status. Although this letter was not intended to be binding on INS officers, it is followed by several ports-of-entry.

The doctrine of dual intent appears to be recognized for O-1 aliens, at least under the INS regulations. According to 8 CFR §214.2(o)(13), 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. This recognition does not apply to O-2 support personnel. The definition of the O-1 category at INA §101(a)(15)(O)(i) does not require the alien to have a foreign residence which he or she has no intention of abandoning.The doctrine of dual intent also appears to be recognized for P-1 nonimmigrants, at least under the INS regulations. According to 8 CFR 214.2(p)(15), the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P-1 petition, 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 a P-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. This provision does not include essential support personnel. The regulatory recognition of dual intent for P non-immigrants is somewhat surprising in light of the fact that the definition of the P category at INA §101(a)(15)(P) specifically requires the alien to have a foreign residence which he or she has no intention of abandoning.