Clients often ask whether to qualify for an immigrant visa (i.e., a green card) they must intend to establish a residence in the U.S. or move there permanently. For example, a father may wish to apply for an immigrant visa through the EB-5 investor category so that his child can get an immigrant visa to study in the U.S.
The answer is that an applicant will qualify for an immigrant visa regardless of whether he or she intends to establish a residence in the U.S. or move permanently to the U.S.
A green card holder has the “privilege of residing permanently” in the U.S. INA § 101(a)(20) (emphasis added). But an immigrant visa applicant is not required to prove an intention to establish a residence in the U.S. or to move to the U.S. permanently. An “immigrant” is simply defined as “every alien except an alien who is within one of the” defined nonimmigrant visa classes. INA § 101(a)(15). Moreover, under 22 C.F.R. § 42.81, the only grounds for refusal of an immigrant visa are INA § 212(a) or INA § 221(g). Neither of those subsections incorporates a requirement that an immigrant visa applicant must intend to establish a residence in the U.S. or move to the U.S. permanently.
As a matter of public policy, it makes sense that Congress doesn’t require immigrant visa applicants to prove an intention to establish a residence in the U.S. or reside permanently in the U.S. First, many immigrant visa applicants have never been to the U.S. It would be absurd to require them to prove beforehand that they have weighed the advantages and disadvantages of living in a country that they have never been to and formed a clear intent to live there permanently. Second, if consular officers were required to determine immigrant visa applicants’ intent, the officers would need to rely on objective evidence of intent, such as steps that applicants have taken to sever ties to their home countries. But it could be tragic and costly for an applicant to sever those ties (such as selling a home and quitting a job) if the applicant is subsequently refused an immigrant visa by the Consulate or refused admission to the U.S. by Customs and Border Protection. The INA does not require such irrational behavior.
It’s critical to realize that although an immigrant visa will be approved regardless of whether the applicant intends to move to the U.S., still a person who gets a green card but doesn’t move to the U.S. will later be at risk of losing it due to abandonment. In short, a green card holder has the privilege of residing permanently in the U.S. but loses that privilege if he or she instead resides abroad. This is a topic for another day.




