What is the “Dual Intent” Doctrine?
Dual intent generally refers to the fact that certain U.S. visas allow foreigners the intention to immigrate at some time in the future while properly maintaining a nonimmigrant status in the present. This allows those visa holders, particularly H-1B professionals, to enter the U.S. while simultaneously seeking lawful permanent resident status (green card status) at a port of entry. Otherwise, visa holders may be presumed to have immigrant intent and can be kept from entry (summarily excluded) as a matter of law.
A common requirement for nonimmigrant eligibility is that an alien may not intend to remain permanently in the United States (i.e. immigrant intent) without jeopardizing his or her nonimmigrant status. If the immigrant intent is presumed based upon inferences made by consular or Department of Homeland Security‘s border review, this is grounds for termination of non-immigrant visas issued, refusal of the visa application, refusal of admission at the port of entry, refusal of readmission, or removal (deportation.)
Further, if a border or consular official believes that a visa holder is intentionally misrepresenting himself, then the applicant for entry into the U.S. can also be permanently barred for visa fraud. Unless the foreigner holds a dual intent type visa, (s)he is subject to review for immigrant intent on each visit to the United States.
Certain types of foreign visitors are allowed dual intent, and other categories of visitors are not. Visas permitted to have dual intent under the Immigration and Nationality Act include:
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),
V visas (spouses and minor children of lawful permanent residents)
Federal regulations also appear to recognize dual intent for:
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),
E visas (for treaty traders or treaty investors and their spouses and minor children).
There are times when individuals who are married to U.S. citizens are allowed into the U.S. on tourist visas or visa waivers. Such applicants for entry must demonstrate to the satisfaction of the consular or port official that their trip is temporary. That is, that they are likely to return to their country of citizenship because they have no interest in immigrating for the purposes of the entry in question.
Dual intent is not recognized for TN workers, B-1 / B-2 and Visa Waiver Program.
There are times when individuals who are married to U.S. citizens are allowed into the U.S. on tourist visas or visa waivers. Such applicants for entry must demonstrate to the satisfaction of the consular or port official that their trip is temporary. That is, that they are likely to return to their country of citizenship because they have no interest in immigrating for the purposes of the entry in question.
