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IMMIGRANT INTENT, NONIMMIGRANT INTENT, AND THE CONCEPT OF "DUAL INTENT."


According to section 214(b) of the US immigration and Nationality Act, ("INA"), "every alien [other than H and L visa holders] 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 US immigration officer, at the time of application for admission [ i.e. at an airport or land boarder], that he is entitled to a nonimmigrant status under section 101(a) (15).

Section 101(a)(15) defines a nonimmigrant, in part, as "an alien having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.

L, H-1B, AND E VISAS


L and H-1B aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are furthermore not required to have a residence abroad which they have no intention of abandoning.

In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L or H-1B nonimmigrant visa or other obtaining or maintaining that status. The alien may legitimately come to the US as a nonimmigrant under the L or H-1B classification and depart at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the US.

Consequently, the consular officer's evaluation of an applicant's eligibility for an L or H- 1B visas shall not focus on the issue of temporariness of stay or immigrant intent.

E visas are treated substantially similar to L and H applicants. The only difference is that this treatment is based on regulations used by the Embassy rather that the INA.

B, F AND M VISAS


B, F, and M visas require that the alien be entering "temporarily." Although "temporary" is not specifically defined in the law, it generally signifies a limited period of stay. The fact that the period of stay in a given case may exceed 6 months or a year is not in itself controlling, provided the consular officer is satisfied that the alien intended stay actually has a time limitation and is not indefinite in nature.

Be prepared to show reasonably good and permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations which will indicate a strong inducement to return to Japan.

For student visas be prepared to explain how you intend to utilize your education or training received in the US in your home country. Why do you want to study English in the US rather than in Japan? Why don't you study flight training in Japan? Why do you want to attend a beauty school in California rather than Tokyo? Why do you want to go to college in the United States? A short typed letter explaining why you want the visa with proof of your ties to Japan is very useful to the consular officer in evaluating this issue. Remember, there are many people who want to study in the United States and the Embassy can't approve all student visa applications. Why should the consular officer approve your application over another person's application.

RELATED LIGHTHOUSE ARTICLES


(#72-01/16/98)
Can I enter the U.S. every 3 months as a visa waiver?

(#123-03/16/2000)
Reasons to Apply for a Tourist Visa vs. Reasons to Use Visa Waiver

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