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Doctrine of Dual Intent for Green Card

Overview: Doctrine of Dual Intent generally refers to the fact that certain U.S. visa categories allow foreigners to properly maintain lawful nonimmigrant status in the U.S. and keep intention to immigrate(seek permanent residence(green card)) in the future.

The Immigration and Naturalization Act (INA) of the United States states under Section 214b that: 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).

In fiscal year 2008, the State Department rejected 2.1 million visa applications, about 70% of them(1.5 million) were denied based on presumption of immigrant intent.

Presumption of immigrant intent does not apply to all non-immigrant visa categories.

  • Visa categories that have immigrant intent provisions: B, E, F, J, M, O-2, P, Q, and TN
  • VIsa categories that do not have immigrant intent provisions: A, C, D, G, I, K, N, O-1, R, S, T, and U
  • Visa categories that are excluded from the immigration intent requirement: H-1, L and V

Doctrine of Dual Intent allows visa holders to enter the U.S. while simultaneously seeking lawful permanent resident status (green card status). Otherwise, visa holders may be presumed to have immigrant intent and can be kept from entry (summarily excluded) as a matter of law.

Persons with H-1B visas (for specialty workers and their spouses and minor children with H-4 visas), K visas (for fiancees or foreign spouses of US citizens and their minor children), L visas (for corporate transferees & their spouses and minor children), and V visas (spouses and minor children of lawful permanent residents) are permitted to have dual intent under the Immigration and Nationality Act. Federal regulations also appear to recognize dual intent O visas (for workers who have extraordinary ability and their spouses and minor children), P visas (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 worker, H-3 trainee/worker, B-1 business, B-2 tourist, VWP visitor, F-1 student, J-1 exchange visitor, M-1 student, journalism, and entertainer visas should not have immigrant intent.

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