If you've ever applied for a nonimmigrant U.S. visa, you might have heard the term "dual intent." Failing to understand what dual intent is could get you into a situation where the visa you choose makes later applying for a U.S. green card difficult or impossible. Here, we'll look at:
Basically, the doctrine of dual intent deals with non-U.S. nationals' intentions as to how long they plan to remain in the United States. If the foreign national intends to live in the U.S. for only a temporary time (say, for a job or school), as opposed to permanently, then they fit one of the key qualifications for a temporary visa. In legal terms, their intent would be classified as "nonimmigrant intent."
For example, if you came to the U.S. solely to work at your company's U.S. branch for a maximum of three years, with the full intention of returning to your home country at the end of that time, you have nonimmigrant intent. During the application process, once you convince a U.S. consular officer of this intent, the officer will feel safe granting you the U.S. entry visa.
On the other hand, a foreign national who is entering the U.S. with designs to remain and live in the country permanently is said to have immigrant intent. That can be a problem. Most but not all nonimmigrant visa categories require the applicant to demonstrate nonimmigrant intent. Applicants in such categories must usually bring many forms of proof to their visa interview, showing, for example, that they maintain a residence abroad, have a family abroad, have a temporary work contract in the U.S., or will plan to leave the United States for specific other reasons. (See, for example, How to Prove Intent to Return Home After Studying in the U.S.)
But a few types of nonimmigrant visas allow for dual intent. It's a not entirely logical concept, which allows foreign nationals in the U.S. to have two things in mind at once:
Dual intent visas can be hugely useful to anyone who, for example, hopes their job in the U.S. will turn to a permanent one, leading the employer to sponsor them for a green card.
This is not to say that single intent visa holders can never obtain a U.S. green card. They will, however, have to tread carefully, and will have various timing considerations to take into account.
Several visa categories, including some for family, spouses, and fiancé(e)s , allow for dual intent upon U.S. entry. These categories are:
Thus if people holding these visas at some point decide to shift gears and apply for a green card, that should be possible.
Given the important distinction between dual intent and single intent visas, it's also important to know which nonimmigrant visa categories do not allow for dual intent:
Again, people who come to the U.S. in these categories will be expected to return to their home country as planned at the end of their U.S. stay.
Switching from nonimmigrant to immigrant status while in the U.S. on a dual intent visa is relatively straightforward. Because the visa category allows for simultaneous nonimmigrant and immigrant intent, the foreign national may begin the green card application process while in the U.S. in nonimmigrant status. The application procedure is called "adjusting status."
Depending on the type of nonimmigrant visa held, the process might involve different steps. However, in all dual intent visa cases, filing an adjustment of status application or beginning the process of applying for a green card will not impact the visa holders' ability to apply for a new dual intent visa or extend their present visa validity.
Applying for immigrant or green card status while in the U.S. on a single intent visa can be tricky. Again, you must not harbor immigrant intent. This is an essential element to keeping your single intent nonimmigrant visa status—and without status in the U.S., you'll have to leave, and at best, won't be able to apply for anything until you're abroad.
However, this element does not prevent a single intent visa holder, for example a TN visa holder, from developing immigrant intent at some point in the future. Let's imagine that when the TN holder received his TN visa, his intent for the present trip and duration of stay was in line with being a temporary nonimmigrant. But he could still have thoughts about seeking a green card sometime in the future, outside of his current stay. One critical distinction is that he must not have taken affirmative steps toward these plans at the time of applying for the TN visa.
Filing a green card application (adjustment of status) with U.S. Citizenship and Immigration Services (USCIS) obviously indicates immigrant intent. Even if that application is approvable, the applicant must worry about maintaining legal status in the United States. So, to continue our example, a TN visa holder who files an I-485 Application to Register Permanent Residence or Adjust Status might not be able to successfully renew his TN status or apply for another single intent nonimmigrant visa after USCIS realizes he's acting like a would-be immigrant.
Timing becomes important, both with regard to travel and working, before USCIS approves the adjustment of status. Although green card applicants may remain in the U.S. while their green card application is pending, some might wish to travel abroad. They cannot, however, leave the country without a valid dual intent visa status or before obtaining an advance parole ("AP") document allowing them to embark on such international travel. Although one usually applies for AP along with adjustment of status, it can take some time before USCIS reviews the packet and approves AP.
Similarly, adjustment applicants may work pursuant to their pending green card application, but will need either a valid underlying work authorized visa status or an Employment Authorization Document ("EAD") granted by virtue of their pending green card application. As with the AP application, it can take some time for USCIS to issue the EAD.
The AP and EAD portions of one's adjustment application cannot be expedited. This means that once our TN holder applies for a green card while in the U.S., he cannot leave without risk of abandoning his green card application, until he receives an AP document. Similarly, if his TN status expires while his EAD application is pending, he cannot work until it is issued.
Additional concerns include the possibility that in reviewing the green card application, a USCIS officer will question what the TN holder's (or other single-intent visa holders) plans were upon entering the United States. That's especially a risk if the person applied for a green card after being in the U.S. visa for only a short time. A USCIS officer who believes the applicant actually held immigrant intent at the time of applying for the TN visa could deny the green card.
Notice that, in our discussion of hurdles, we were referring only to "adjustment of status," namely the process of applying for a green card through USCIS. But there's another route to applying for a green card, called "consular processing." For the reasons described above, consular processing in the home country is often the best route to apply for a green card if you are in the U.S. on a single intent visa. But this could mean months outside the United States, and an interruption in your work. It's obviously not ideal.
A good attorney might improve your chances of obtaining U.S. lawful permanent residence. The attorney can help you strategize the best type of visa and green card for your situation, prepare the paperwork and supporting documents, and so on.