U.S. law presumes that every person seeking to come to the U.S. intends to stay permanently, and it is the burden of the applicant for most temporary visas and admission to the U.S. to convince the Consular or immigration officer otherwise, with some important exceptions.
For some visa classifications, the alien must be prepared to demonstrate “a residence in a foreign country which he has no intention of abandoning.” This harsh standard applies to visitors, students, exchange visitors and certain trainees and temporary workers (B, F, H-2A, H-2B, H-3, J, M, O-2, and some P). While this does not necessarily require the maintenance of an independent household abroad while the person is in the U.S. (particularly if the person customarily resides in someone else’s home abroad), these applicants should be particularly prepared to present evidence of ties to their home country, circumstances that make it sensible for them to return after their visit to the U.S., and clear arrangements for their physical residence upon return home).
The law requires that most other applicants demonstrate that they are coming “temporarily” or for a specifically limited time. As a practical matter, this tends to require the same kinds of evidence of home country ties, when requested by the government.
There are some special exceptions. H-1B and L-1 workers and their families are statutorily exempted from the nonimmigrant intent requirement, which makes them the most popular categories for people who are simultaneously trying to arrange permanent residence. Other classifications, including A, E, G, I, and N, are subject to an intermediate standard that arguably allows a “dual intent” but as a practical matter can be subject to occasional problems when they lack home country ties or have pursued permanent residence. Finally, some classifications are clearly designed as a bridge to permanent residence, so that nonimmigrant intent is not an issue for them (K, S, T, U, and V). The types of documentation that can be helpful in demonstrating nonimmigrant intent include the following:
- Ties to home country, including presence of nuclear and/or extended family, career opportunities such as job offers, ownership of property, or interests/opportunities that may be forfeited if the alien does not return to his home country.
- History of alien’s and family’s timely return from U.S. on prior trips.
- Adequate financial arrangements for visit, including such things as pre-purchased round trip tickets, a sponsoring employer’s obligation for expenses/salary, an affidavit of support by a U.S. citizen or permanent resident along with a letter explaining temporary purpose of visit, arrangements for support of family remaining abroad, and arrangements for resumption of work upon return.
- Specific travel plans including pre-paid round trip airline tickets, hotel reservations, car rental reservations, and a detailed itinerary.
A finding of lack of nonimmigrant intent (usually referring to “Section 214(b)” on a notice of decision) can be very difficult to overcome, particularly when one of the classifications requiring a continued foreign residence is involved. This is because the decision rests, in effect, on a factual finding on which the consular officer cannot be legally overruled, even by the Secretary of State. Nevertheless, legal counsel sometimes can be helpful in avoiding or overcoming an adverse finding.
How We Can Help
We assist clients in evaluating and comparing the seemingly innumerable visa classifications for which they might be qualified, whether a visa will be required (and if not required whether it should be obtained anyway), where and how to apply, and how best to accomplish entry. We advise clients about inadmissibility grounds that may apply and assist in waiver applications and appeals from denials of them. We assist clients in seeking review of visa denials. We represent clients in removal proceedings, where available if they are found inadmissible. We help clients seek remedies even when they have been removed at the border without a hearing. We help clients maintain their status and extend and change it to meet new goals. We also plan and take appropriate steps toward permanent residence, coordinating such plans and steps with the temporary status.
Consult with us for assistance with a case.