Proving Nonimmigrant Intent for a U.S. Visa

Nonimmigrant IntentMany types of nonimmigrant visas require the applicant to prove he or she (a) is not an intending immigrant, (b) has an unabandoned foreign residence, and (c) is coming to the U.S. temporarily. This article explains how to prove nonimmigrant intent. Feel free to ask questions or add ideas in the below “Comments” section.

1. Introduction

Many types of nonimmigrant visa require proof that the applicant (a) is not an intending immigrant, (b) has an unabandoned foreign residence, and (c) is coming to the U.S. temporarily. This article explains each of these legal requirements.

Visa Symbol and Description (a) Must prove he or she is not an intending immigrant? (b)     Applicant must have unabandoned foreign residence? (c) Applicant must be coming to U.S. temporarily? Notes
B (visitor for business or pleasure) Y Y Y
E-1 (treaty trader, spouse, or child) Y N N
F-1 (student) Y Y Y An F-2 must intend to leave the U.S. upon the termination of the F-1’s status. 22 C.F.R. § 41.61(b)(3).
H-1B (alien in a special occupation) N N Y The presumption of immigrant intent does apply to entrants under the U.S.-Singapore and U.S.-Chile Free Trade Agreements. INA § 214(b).
H-2 (temporary worker performing agricultural services or other services); H-3 (Trainee) Y Y Y
J (exchange visitor) Y Y Y
L-1 (Intracompany transferee) N N Y
O-1 (Alien with extraordinary ability) Y N Y
O-2 (accompanying alien) Y Y Y
P (athlete; certain artists & entertainers) Y Y Y
R-1 (Alien in a religious occupation) Y N Y An R-1 must “seek to enter the United States for a period not to exceed 5 years.” INA § 101(a)(15)(R).
TN (NAFTA professional) Y N Y
Note: a spouse or child applying for a derivative visa (e.g., F-2, H-4, O-3, L-2) to accompany or follow to join the principal has the same nonimmigrant intent requirements as the principal. 9 FAM § 41.11 NN 4.3, 5.1.

 

This article is not a list of tips for what to do or what not to do during a nonimmigrant visa interview.[1] That strategy needs to be tailored to the individual applicant’s situation. There is no “magic list” of documents (to wit, bank statements, evidence of employment, etc.) or incantations (for example, “I need to return to China to continue at my job and care for my aging parents”) that can prove nonimmigrant intent. Proving nonimmigrant intent will be different for a student from a wealthy family going to boarding school, a rock musician going on tour, and an executive attending business meetings. The strategy also needs to take into account the mindset of a consular officer, whose decision isn’t scientific, but rather a subjective practice where the officer has to make a judgment call. The goal of this article is to explain the underlying legal issues, an understanding of which must precede the strategy.

2. The Requirements Explained

2.1 Presumption That Visa Applicants Are Immigrants

The Immigration and Nationality Act provides for both immigrant[2] and nonimmigrant[3] visas. Immigrant visas (i.e., permanent resident status or “green card” status) allow for indefinite residence in the United States. In contrast, nonimmigrant visas allow entry only for a limited period an only to carry out specified activities.[4]

Section 214(b) of the Act[5] requires a consular officer to “presume” that every applicant for admission is an “immigrant” unless he or she proves qualification for a nonimmigrant visa.[6]

According to the State Department’s current interpretation, section 214(b) “simply means that the nonimmigrant visa (NIV) applicant must prove to [the consular officer] that he or she meets the standards required by the particular visa classification for which he or she is applying.”[7]

Essentially, for a visa classification which requires the applicant to have an unabandoned foreign residence and/or be coming to the U.S. temporarily, the officer must presume the applicant doesn’t meet those requirements unless the applicant can prove otherwise.[8]

2.2 Unabandoned Foreign Residence

Various nonimmigrant visa categories require that the applicant “hav[e] a residence in a foreign country which he has no intention of abandoning.”[9] For purposes of proving an unabandoned foreign residence, the term “residence” means one’s “principal, actual dwelling place in fact, without regard to intent.”[10] This has been interpreted to mean:

  • The officer should look at the objective facts (not subjective intent)[11] to determine whether the applicant has a residence abroad. If so, then officer should also consider whether the applicant intends to abandon that residence.
  • An applicant needn’t maintain an “independent household,” so it’s OK if the applicant’s residence is in a home owned by someone else.[12]
  • Also, one needn’t intend to return to the same home where he or she lived in the past—for example, an applicant who has been living in Germany, may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit to the U.S.[13]
  • The consular officer’s suspicion that after entering the U.S., the applicant “may be swayed to remain in the United States because of more favorable living conditions,” is not a sufficient ground to refuse a visa so long as the applicant’s current intent is to return to a foreign residence.[14]

2.3 Coming to the U.S. “Temporarily”

Various of the nonimmigrant visa categories require the applicant to be “seek[ing] to enter the United States temporarily.”[15] The term “temporary” isn’t specifically defined by statute. In its ordinary sense, “temporary” means “lasting for a time only; existing or continuing for a limited time.”[16] There is no set outer limit such as six months or a year or even three years.[17] The consular officer must be satisfied that the intended stay has a time limitation and is not indefinite in nature.[18]

For a B visa applicant’s trip to be considered temporary, the applicant must have specific and realistic plans for the entire period of the trip.[19] The period of time projected for the visit must be consistent with the stated purpose of the trip.[20] And the applicant must prove an intention to depart the U.S. upon completion of that purpose.[21] For example, the temporariness requirement would be met where one “cohabiting partner” will accompany another for a two-year work assignment or a four-year degree program and then depart the U.S.[22]

For a TN visa, a “temporary entry” means “entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien’s entry will be temporary, the TN applicant must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.[23]

2.4 Analysis

The requirements of keeping a foreign residence and coming to the U.S. temporarily are very closely related. When a consular officer analyzes whether an applicant meets these requirements, the officer will consider the factors that will push the applicant to return home and the factors that will pull the individual to stay in the U.S. These include[24]:

  • Family and personal ties in each country.
  • Work and business ties and opportunities in each country.
  • Homes owned or leased in each country.
  • Property ties (e.g., car, other real estate, bank accounts, investments) in each country.
  • Social or cultural ties in each country.
  • Prior efforts to establish permanent residence in the U.S. and prior U.S. immigration violations.
  • Whether the purpose of the U.S. clear, credible, and is consistent with the desire to keep a principal home abroad.

3. Dual Intent: Can a Person Who Seeks to Immigrate in the Future Qualify as a Nonimmigrant Now?

A vexing issue in immigration law is whether a person can qualify now for a nonimmigrant visa that if there is also any evidence of immigrant intent—a past intent, an intent to seek to immigrate during this trip to the U.S., an intent to immigrate to the U.S. in the future, or even a hope to immigrate in the future. This is known as “dual intent.”

3.1 H-1B, L-1, O-1

The rules for H-1B, L-1 and O-1 visas are clear. Approval of labor certification or the filing of an immigrant visa petition does not preclude granting H-1B status,[25] L-1,[26] or O-1 status.[27] The officer must, however, be satisfied that the applicant will depart the U.S. voluntarily when his or her authorized nonimmigrant stay expires if not granted permanent resident status.[28] So, for example, past immigration violations may be evidence that the applicant isn’t coming merely temporarily.

3.2 Other Visas

The filing of an immigrant petition does not automatically make an applicant ineligible for other types of visas, such as B1/B2. But the applicant must affirmatively prove that his or her activities in the U.S. will be consistent with what is allowed for that visa, and that he or she does not intend to use the visa to enter and reside in the United States. And, if required for the visa category, the applicant must affirmatively prove an unabandoned foreign residence. [29] A B1/B2 visa should be denied if the applicant’s “true intent is to remain in the United States until such a time as an immigrant visa … becomes available.”[30] In the past, the State Department has made similar announcements regarding other types of nonimmigrant visas.[31]

And the Department of Homeland Security (DHS) has made announcements about “dual intent” similar to those of the State Department.[32] This means that even if an individual is issued a nonimmigrant visa by the Consulate abroad, DHS may still refuse to admit the individual at the airport or other port of entry.

3.3 Entering the U.S. as a Visitor When Engaged or Married to a U.S. Citizen

A person entering the U.S. to marry a U.S. citizen needs a K-1 fiancée visa, except that entry as a B visitor is authorized if he or she can prove an intention to return to an unabandoned residence abroad soon after the marriage.[33] Some situations where a person may legitimately enter then return abroad include:

  • meeting the family of his and/or her fiancée;
  • becoming engaged;
  • making arrangements for the wedding; or
  • renewing a relationship with the prospective spouse.[34]

Still, as a practical matter, once a foreign national is engaged or married to a U.S. citizen or has begun the immigration, K-1, or K-3 visa process, it may be difficult to be granted a B1/B2 visa from a consular officer and be admitted to the U.S. as a visitor by a CBP inspector.

However, as a practical matter, for some it may be difficult to prove such an intent and to overcome the legal presumption that he or she is an immigrant.

3.4 Avoiding Misrepresentations

Also, it’s critical that a nonimmigrant visa applicant not misrepresent to immigration authorities the true purpose of a trip to the U.S., or his or her engagement or marriage to a U.S. citizen, or the fact that that immigration, K-1, or K-3 process has begun. This could amount to fraud or misrepresentation, which is a legal ground to deport a noncitizen and permanently prohibit readmission.

For example, the below is a dialogue between a CBP officer and a fiancée planning to enter the U.S. as a visitor then apply for adjustment to LPR status on the basis of marriage to a U.S. citizen. The fiancée makes two misrepresentations:

Q: What’s the purpose of your visit?

A: Tourism.

Q: How long will you stay?

A: Two weeks.

If the CBP officer at the port of entry determines that an applicant is ineligible for admission to the U.S. on the basis of fraud or misrepresentation, the applicant may be “summarily removed,” meaning that the applicant is deported from the U.S. with no hearing before a judge, is permanently prohibited readmission absent special circumstances.

Similarly, a person physically present in the U.S. filing a Form I-485, Application to Adjust Status, to become a lawful permanent resident may be denied and placed in removal proceedings on the basis of a prior fraud or misrepresentation.[35]

If you tell the truth about your marital status and marriage-related immigration efforts, you may apply for a nonimmigrant visa. Denial on the basis that you lack nonimmigrant intent is without prejudice to your immigration efforts. Still, given the significant refusal rate for B1/B2 visa applicants with “dual intent” issues, it may be wise to hire an immigration attorney to advise you.

4. Rules for Specific Visa Categories

4.1 B-1/B-2 Visitors

B-1/B-2 visitors must both keep their residence abroad and be coming temporarily to the U.S.[36]

For a B visa applicant’s trip to be considered temporary, the applicant must have specific and realistic plans for the entire period of the trip.[37] The period of time projected for the visit must be consistent with the stated purpose of the trip.[38] And the applicant must prove an intention to depart the U.S. upon completion of that purpose.[39]

For example, the temporariness requirement would be met where one “cohabiting partner” will accompany another for a two-year work assignment or a four-year degree program and then depart the U.S.[40]

4.2 F-1 Students

For F-1 student visas, the State Department notes that it is natural for a younger student to lack the property, employment, and family ties characteristic of an older visa applicant.[41] Consular officers are instructed to focus on whether the applicant has the “present intent to depart the U.S. at the conclusion of his or her studies.”[42] That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.[43]

Consular officers are instructed not to focus on whether an applicant’s proposed education would be “impractical” in his or her home country. For example, an applicant proposing to study philosophy shouldn’t be denied a visa simply because it doesn’t lead to a specific career.[44]

Nor should a visa be denied simply because the proposed education

is available in the home country. The student may legitimately wish to study in the U.S. for various reasons, including a higher standard of education.[45]

4.3 J-1 Exchange Visitors

A J-1 exchange visitor may be in the U.S. for a prolonged period. Still, “the consular officer must be satisfied at the time of the” visa application that the applicant has a “present intent to depart the U.S. at the conclusion of his or her program.” Also, consular officers should not “automatically assume” that the applicant will return to a residence abroad merely because the applicant is subject to the two-year foreign residence requirement. A factor to consider is whether the skills that the alien expects to acquire in the United States can be readily and effectively utilized in the country to which he or she is returning.[46]

Filing a request for a waiver of the two-year home residency requirement will not, in and of itself, bar an extension of J-1 status, but approval of the waiver will be a bar.[47]

4.4 H-1B Temporary Workers and L-1 Intracompany Transferees

H-1B temporary workers and L-1 intracompany transferees needn’t keep a residence abroad but must be coming temporarily to the U.S.[48]

Approval of labor certification or the filing of an immigrant visa petition does not preclude granting proving that one’s stay will be temporary.[49] The officer must, however, be satisfied that the applicant will depart the U.S. voluntarily when his or her authorized nonimmigrant stay expires if not granted permanent resident status.[50] So, for example, past immigration violations may be evidence that the applicant isn’t coming merely temporarily.

4.5 H-2 Workers and H-3 Trainees

The approval of a permanent labor certification or the filing of a preference petition for a foreign national currently employed by or in a training position with the same petitioner in H-2 or H-3 status, shall be a reason, by itself, to deny the foreign national’s extension of stay.[51]

4.6 TN Professionals

TN status doesn’t require the holder to maintain a foreign residence. But a TN must be making a “temporary entry.”[52]

For a TN visa, a “temporary entry” means “entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary.

A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien’s entry will be temporary, the TN applicant must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.[53]

Having applied for permanent resident status may make it difficult for a TN applicant to prove he or she is coming to the U.S. temporarily. According to DHS, the filing of an immigrant petition (Form I-130 or Form I-140) is a negative factor but is not necessarily fatal:

The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for [TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that [an application is filed.][54]

DOS has made similar pronouncements: an applicant can have the required intent to make a “temporary” trip now despite an intent to immigrate in the future.[55]

However, DHS has stated that filing of a Form I-485, Application for Adjustment of Status, or application for an immigrant visa is fatal to a subsequent TN application: “once a TN files” one of these applications “then the TN would no longer be eligible for admission or an extension of stay as a TN.”[56]

Endnotes

  1. See, e.g., NAFSA and the U.S. Dep’t of State, Ten Points to Remember when Applying for a Nonimmigrant Visa (June 15, 2007), http://www.nafsa.org/Resource_Library_Assets/Migs/LAISR_IIG/Ten_Points_to_Remember_when_Applying_for_a_Nonimmigrant_Visa/.
  2. INA § 201.
  3. See INA § 101(a)(15).
  4. INA § 237(a)(1)(C)(i) (ground of deportation for failure maintain nonimmigrant status or comply with the conditions of the status).
  5. “Every alien [other than H-1B, L, or V nonimmigrants] 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 immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” INA § 214(b).
  6. INA § 101(a)(15).
  7. 9 FAM § 40.7 N1.1. (June 13, 2006).
  8. According to DOS, section “214(b) does not provide any independent standards for qualifying for a NIV…. This section does not impose a separate standard on immigrant intent” beyond the requirements of keeping a foreign residence and coming temporarily. 9 FAM 40.7 § N.15 (Sept. 28, 2005). The DOS interpretation conflicts with other authorities which regard 214(b) as an additional requirement that the applicant have “nonimmigrant intent:”First, certain nonimmigrant visa classes, including H-1B and L-1, are statutorily exempt from the presumption of INA § 214(b). Under the State Department’s interpretation, this should mean that H-1B and L-1 visa applicants don’t bear the burden of proving they qualify for visas. However, INA § 291 clearly places the burden of proof on all visa applicants.Second, DOS regulations state that 214( b) is a ground for refusal. 22 C.F.R. § 41.121. That’s not a very specific ground for refusal if it just means that the applicant failed to meet another unspecified requirement for the visa.Third, the DOS Foreign Affairs Manual itself still at times refers to 214(b) as requiring nonimmigrant intent—for example, “[i]n a 214(b) refusal, the denial must always be based on a finding that the applicant’s specific circumstances failed to overcome the intending immigrant presumption.” 9 FAM § 41.121 PN1.2-11 (Feb. 26, 2008).However, this debate is largely academic because the requirement of “nonimmigrant intent” is for practical purposes indistinguishable from the requirements of keeping a foreign residence and coming temporarily.
  9. See e.g. INA § 101(a)(15)(B).
  10. INA § 101(a)(33).
  11. 9 FAM § 41.11 N2.2.
  12. 9 FAM § 41.11 N2.1.
  13. 9 FAM 41.11 N2.2-2.
  14. 9 FAM § 41.31 N2.3 (Feb. 15, 2005).
  15. See e.g. INA § 101(a)(15)(F).
  16. Webster’s Third New International Dictionary 2353 (1993), cited in John P. Elwood, Dep’y Ass’t Atty. Gen., Memorandum Opinion for the Acting General Counsel, DHS (Dec. 18, 2008), AILA Infonet Doc. # 09022664 (Feb. 26, 2009).
  17. See John P. Elwood, Dep’y Ass’t Atty. Gen., Memorandum Opinion for the Acting General Counsel, DHS at 3 n.3 (Dec. 18, 2008), AILA Infonet Doc. # 09022664 (Feb. 26, 2009) (citing various federal statutes defining temporary as meaning up to three years).
  18. 9 FAM § 41.31 N3.1 (Feb. 15, 2005).
  19. 9 FAM § 41.31 N3.2 (Feb. 15, 2005).
  20. 9 FAM § 41.31 N3.1 (Feb. 15, 2005).
  21. 9 FAM § 41.31 N3.1 (Feb. 15, 2005).
  22. 9 FAM § 41.31 N3.4 (Feb. 15, 2005).
  23. 8 C.F.R. § 214.6(b).
  24. See 9 FAM 41.31 N3.4 (Feb. 15, 2005).
  25. INA § 214(h); 8 C.F.R. § 214.2(h)(16)(i).
  26. INA § 214(h); 8 C.F.R. § 214.2(l)(16).
  27. 8 C.F.R. § 214.2(o)(13).
  28. 8 C.F.R. §§ 214.2(h)(16)(i), 214.2(l)(16), 214.2(o)(13).
  29. 9 FAM § 41.31 N17.
  30. Id.
  31. “With respect to the question of issuing a nonimmigrant visa to an alien registered on an immigrant visa waiting list, whether as the spouse or child of a permanent resident or on any other basis, the Department has long recognized the concept of ‘dual intent.’ The Department’s position in this respect has for many years been that an alien who is registered for immigration or who otherwise shows an intent to immigrate to the United States may nonetheless be issued a nonimmigrant visa if the alien can establish to the satisfaction of the consular officer that he or she intends in good faith to make a temporary trip to the United States and depart upon completion of his or her temporary trip.” U.S. Dep’t of State, Cable 92-State-193038 (June 17, 1992). See also 9 FAM 41.31 N15 (B visa may be issued to a permanent resident who due to emergency circumstances, such as an urgent U.S. meeting, can’t wait for a returning resident visa.).
  32. Letter, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 18, 1996); see Matter of H-R-, 7 I. & N. Dec. 651 (Reg. Comm’r 1958) (Applicant withdrew immigrant visa application in order to more quickly obtain visitor’s visa. Six months after entering U.S., he applied for adjustment of status. Held: “The fact that the applicant previously expressed a desire to enter the United States as an immigrant–and may still have such desire–does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant” for purposes of adjustment.); Matter of Wellhofer, 12 I. & N. Dec. 522 (Reg. Comm’r 1967) (following Matter of H-R-). See also CBP Inspectors Field Manual § 17.10(b) (Green card holder at DHS port of entry may relinquish permanent resident status and be admitted as a visitor.).
  33. 9 FAM 41.31 N14.1-1.
  34. 9 FAM 41.31 N14.1-1. Some courts have gone further than the agencies by holding that a nonimmigrant visa—even one requiring an unabandoned foreign residence and a temporary stay—may be issued so long as the applicant intends to leave the U.S. if it’s not legally possible to immigrate. Brownell v. Carija, 254 F.2d 78 (D.C. Cir. 1957) (An alien actually and in good faith in transit through the United States does not become an unlawful entrant because he entertains a desire, purpose or intent to remain here if the laws of the country permit him to do so. Such a purpose, so limited, could at best be only a hope.); Choy v. Barber, 279 F.2d 642 (9th Cir. 1960) (It is permissible for a nonimmigrant to intend to comply with terms of a temporary visit and also intend to pursue permanent residence, if an opportunity arises. Following Carija.); Lauvik v. INS, 910 F.2d 658 (9th Cir. 1990) (E-2 treaty investor visa extension denied by INS on the basis that applicant expressed a wish to immigrate. Held: Reversed. It was error to deny extension on the basis that the applicant was not a bona fide nonimmigrant. “There was no evidence he intended to remain if that was not legally possible.” Following Choy and Matter of H-R.).Such courts are essentially applying the current test for H-1B, L, and O visas, and the agencies oppose such permissiveness for other visas. Still, nonimmigrant intent may exist despite a mere “hope” to immigrate. Matter of Chartier, 16 I. & N. Dec. 284 (BIA 1977) (stating in dictum that a adjustment of status may not be denied on the basis of preconceived intent to immigrate where an individual entering as a nonimmigrant merely “hoped” to become a permanent resident.); Chryssikos v. Comm’r of Immigration, 3 F.2d 372, 375 (2d Cir. 1924) (“[T]here is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.”).
  35. Cf. Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) (Respondent was admitted as a nonimmigrant visitor for pleasure with a border crossing card. He married a U.S. citizen the same day. Assuming he had a preconceived intent to remain permanently at the time of entry as a nonimmigrant, it is INS policy per OI 245.3(b) that an adjustment applicant should not be denied as a matter of discretion solely on this basis where substantial equities are present in the case. Here, the U.S. citizen wife and child are substantial equities. Notably, the respondent was not charged with any fraud or misrepresentation.); Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981) (limiting Cavazos’ holding to immediate relatives).
  36. INA § 101(a)(15)(B).
  37. 9 FAM § 41.31 N3.2 (Feb. 15, 2005).
  38. 9 FAM § 41.31 N3.1 (Feb. 15, 2005).
  39. 9 FAM § 41.31 N3.1 (Feb. 15, 2005).
  40. 9 FAM § 41.31 N3.4 (Feb. 15, 2005).
  41. 9 FAM 41.61 N5.2.
  42. 9 FAM 41.61 N5.2.
  43. 9 FAM 41.61 N5.2.
  44. 9 FAM 41.61 N5.3.
  45. 9 FAM 41.61 N5.4.
  46. 9 FAM § 41.62 N5.
  47. Letter, Jin, USIA G.C. (Dec. 18, 1995), reprinted in 69 Interpreter Releases 47, 51 (Jan. 9, 1998).
  48. The statutory requirements for the visas don’t include an unabandoned foreign residence. INA § 101(a)(15)(h), (l). Interestingly, however, a separate statutory section seems to presume this is a requirement. INA § 214(h) (“The fact that an alien is the beneficiary of an [immigrant petition] … shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining” an H-1B or L-1 visa.).
  49. INA § 214(h); 8 C.F.R. § 214.2(h)(16)(i).
  50. 8 C.F.R. §§ 214.2(h)(16)(i).
  51. 8 C.F.R. § 214.2(h)(16)(ii).
  52. 8 C.F.R. § 214.6(a).
  53. 8 C.F.R. § 214.6(b).
  54. Letter, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 18, 1996).
  55. 9 FAM § 41.59 N5.
  56. Letter from Paul M. Morris, Exec. Dir., Admissibility and Passenger Programs, CBP, to attorney Charles D. Herrington, Apr. 21, 2008, AILA Infonet Doc. # 09021280.

 

67 Replies to “Proving Nonimmigrant Intent for a U.S. Visa”

  1. Dear Gary,

    My mother, a US citizen, applied for my immigration in 1995 on the basis of a Form I-130, Petition for Alien Relative. In 1996, the petition was approved for processing but I never followed up and am not interested in migrating to the US anymore.

    However I would like to go see my mother who is old now cannot travel. Since I cannot get a B1/B2 visitor’s visa to travel to the US because my I-130 file is still active, how can I or my mother urgently cancel the petition?

    What is the procedure and how long will it take since she is now 82 and critically ill ?

    Thanks,

    Meraj

    1. Meraj,

      As mentioned in the article, the filing of an immigrant petition does not automatically make an applicant ineligible for other types of visas, such as B1/B2 visitor’s visa. But the applicant must affirmatively prove that his or her activities in the U.S. will be consistent with what is allowed for that visa, and that he or she does not intend to use the visa to enter the U.S. and stay permanently. And the applicant must affirmatively prove he or she has an unabandoned foreign residence. In contrast, a B1/B2 visa should be denied if the applicant’s “true intent is to remain in the United States until such a time as an immigrant visa … becomes available.” (See 9 FAM § 41.31 N17.)

      So there’s no rule stating that you can’t qualify for a B1/B2 visa just because a Form I-130 has been filed on your behalf. Still, you are correct that it can help convince a consular officer of your nonimmigrant intent if the Form I-130 and any immigrant visa application are withdrawn.

      Department of Homeland Security regulations allow the petitioner (your mother) to withdraw an approved petition until the beneficiary (you) are
      admitted to the U.S. or granted adjustment of status on the basis of the petition. (8 C.F.R. §§ 103.2(b)(6), 205.1.) She can submit a withdrawal letter to USCIS by mail. USCIS should reply in writing (AFM ch. 20.4), but that is not required for the withdrawal to be effective, and USCIS typically does not reply on a timely basis. Any immigrant visa application filed by you is considered be terminated due to the withdrawal (22 CFR § 42.43(b)(1)), if it wasn’t previously terminated due to your failure to timely follow through on the application. You can notify the National Visa Center or the U.S. Consulate where your immigrant visa application is pending to notify them of the withdrawal.

  2. Can I apply for a student visa while I am waiting to immigrate in the F2A category on the basis of an I-130 by my father?

  3. Hello Gary,
    I am a permanent resident and I would like to marry my foreign fiancé and sponsor him for permanent residence. Since the waiting times are pretty long (13 months), I think he should get a B2 visa so that he can stay in the US with me for up to 6 months (doing nothing 🙂 ). Do you think it would be possible? Also, do you think it would be better to ask for the B2 first, and get married then file the I130 or the opposite? We just don’t want to spend 13 months apart. I can support him, and we have some savings enough to live on for more than one year.
    Thanks!

    1. Rino,

      I totally sympathize with your concern that you don’t want to be separated from your fiancé during the long immigration process.

      The issue of “dual intent” is discussed at Part 3.2 of my above article. Basically, if your fiancé intends to immigrate, then he can’t come as a B2 (visitor for pleasure) as a way to stay until he immigrates–he’s not allowed to cut the cue that way. So he has to prove he has a compelling temporary reason for coming to the U.S. Examples may be coming to meet your family, to get engaged, to make arrangements for the wedding, or simply to “renew” your relationship. He’ll also need to show compelling ties to his home country that will require his return upon completion of the B2 visit (e.g., job or program of study, home, or other ties). You can see that coming for 6 months (normally the maximum time allowed for an initial entry in B2 status) and to do “nothing” is unlikely to be a successful strategy.

      And you’re right that as a practical matter, it may make more sense to apply for the B2 visa before filing the I-130.

  4. Hi Gary,

    I came to the US last year on a B1 visa. My fiancé and I were engaged in Europe and when I came to the US, we found out she is pregnant. As I did not want my child to be born out of wedlock, we decided to get married few days before I was leaving the states and I did leave after that. Sadly, she miscarried soon after.

    We did not have plans for me to immigrate as we were thinking of her moving to my country and work from there.

    My wife and I again met in Europe soon after she again become pregnant after 3 months, she miscarried again. I again came to the US on business and this time but my wife was in a very traumatic state emotionally because of the second miscarriage. We are now in care of a doctor who is a reproductive specialist and just tried IUI procedure recently. We decided its not going to work out with me traveling back and forth so we decided to file for a green card which will enable me to live here longer and open a business branch here too for my work. We have all the medical reports of earlier pregnancy terminations and the current procedure we are going through. Do you think the above is substantial to prove non-intent to immigrate?

  5. Dear J,

    Evidence that you and your wife are currently undergoing fertility treatment abroad may be helpful in proving nonimmigrant intent. Still, the officer will need to look at all relevant facts (see Part 2.4 of the article) and make a decision based on the totality of the facts.

    1. Hi Gary,

      I live in India. My dad has filed an I130 petition for me and my family. It is not yet approved,
      but my son wants to go to the U.S. to get trained at a basketball academy. He is quite good at it.
      Can he get enrolled there before our case is approved, and will this cause any problem to our case?

      1. Simran,

        As to whether your son could prove nonimmigrant intent to get a nonimmigrant visa to attend basketball academy, that will turn on the totality of the facts, so knowing so little I’m unable to predict a consular officer’s decision.

        Getting a nonimmigrant visa wouldn’t negatively impact the family-sponsored permanent residence application so long as the written application materials, supporting documents, and testimony at the interview and port of entry are all truthful, and so long as he doesn’t violate the terms of his status once admitted to the U.S.

  6. My husband and I are waiting on a I-130 that we filed in October 2013. I am pregnant and have passed out several times. It has become dangerous for me to drive or to live alone. We applied for a visitors visa so that he could be with me during the final weeks of pregnancy and the birth. He would then return to Uganda to finish waiting for the visa to be processed. He had ample evidence of his intent to return, ie. a speaking engagement, he owns a business, and he is a student at the Kamapala University and would be required to attend for exams. He had a residence that he was renting that he had no plans to abandon.
    He was denied for lack of evidence and yet they refused to look at ANY documents that he had brought with him. They considered nothing but the actual application. They asked him no questions and his entire interview lasted less than 1 min. Surely this can not be legal and if not what can we do about it. I understand there is no appeal process. Aren’t these people accountable to someone? I REALLY need my husband with me at this time.

    1. Vilate,

      No, the consular officer is accountable to no one. Let me qualify that slightly. While the officer’s supervisor is responsible to do a quality review some percentage of the officer’s denials, the supervisor won’t reverse the consular officer’s decision on a factual matter like nonimmigrant intent. The Secretary of State lacks the power to reverse a consular officer’s decision on a factual matter. This consular absolutism has long been a concern of the American Bar Association. With no power to appeal, one common approach is to reapply.

      Please note that consular officers may be sympathetic to humanitarian issues like your difficult pregnancy, but that shouldn’t impact the calculus in determining whether your husband has nonimmigrant intent. You mention some of your husband’s ties to his home country (e.g., he’s a student and owns a business). He also has strong ties to the U.S. (you and a child on the way). Congress has enacted a law stating that the consular officer can’t approve a B1/B2 visitor’s visa unless the ties are so compelling that it’s likely your husband’s U.S. trip will be temporary and he’ll returned to live in his home country.

      And it’s a shame that the officer didn’t ask him questions or look at any supporting documents he brought. Under the provisions of the Foreign Affairs Manual, which is the State Department’s internal guidelines, he should have an opportunity to briefly submit oral and documentary evidence in support of his case. As a practical matter, consular officers often ignore those guidelines because they are harried and give short shrift to documents, which they believe can easily be forged.

  7. My fiance applied for the B-2 visa stating that he was coming to US to meet my family, marry me, and then return home because he couldn’t just up and abandon his life at home. Despite having strong ties to home, stating that at a later date we would apply for a CR-1, and stating that the K-1 would not allow him to return home after marriage until the adjustment of status was approved, he was flat out denied on the basis that he would most likely not return home and that he could not marry on a B2 visa but must apply for a K-1 irregardless of what his intentions are. I read the FAM through and through and I know for a fact we do not have to apply for a K-1. Is there no way, no way at all to appeal this? He also stated that every single person ahead of him was denied regardless of what information was provided. What recourse do we have?

    1. Hi Alicia,

      If the officer stated that a B-2 visitor is prohibited from marrying in the U.S., that is a clear error of law. Such an error could be addressed by requesting reconsideration, supervisorial review, or an advisory opinion from the State Department’s Visa Office in Washington, DC.

      Unfortunately, getting that error reversed may or may not resolve your fiance’s problem. He could still be denied if a consular officer isn’t persuaded that your fiance clearly intends to return to an unabandoned foreign residence after a temporary U.S. trip. That decision is subjective and since it is classified as a factual issue, it is not subject to any serious review. That’s what makes each consular officer a potential tyrant and why the American Bar Association has suggested that the State Department put into place a system for appellate review.

  8. Dear Gary,

    I’m a graduate student at a US university and on an F-1 visa. I came back to my home country (Turkey) to conduct my dissertation research, with my fiance (US citizen). We got married here after my visa expiration date.

    After I finish my research in Turkey, I have to go back to finish my degree and defend my dissertation.

    My wife and I don’t intend to stay in the States after I complete my degree. However, from what I have read, applying to renew my F-1 visa might be considered as a misrepresentation.

    Therefore, I was wondering if following the I-130 route is the only option for me to go back to finish my studies. And if so, considering not being able to apply for an F-1 visa or a very delayed immigration process would cause significant personal and financial losses (after investing more than 5 years in my research), can I request an exception for consular filing in Turkey or for expedited processing in the States?

    1. Axl,

      Applying for an F-1 visa when you’re married to a U.S. citizen is not a “misrepresentation.” The term “misrepresentation” just means a false statement. The Form DS-160, Nonimmigrant Visa Application, asks the name and immigration status of your spouse. If you tell the truth, you have not made a misrepresentation. The challenge is that an F-1 student must have an unabandoned foreign residence and be going to the U.S. temporarily. The consular officer (when applying for a visa) and border protection officer (at the airport) may suspect that you don’t qualify in that you intend to abandon your residence abroad and move to the U.S. permanently. You need to prove to both that you have nonimmigrant intent. Strategies for proving nonimmigrant intent are discussed in the attached article.

  9. I am applying for an F1 visa for myself and F2 visas for my children. I would like my parents also to travel along with me to US and stay for a few months.
    1. Can my parents apply for B2 visa using my F1 visa as proof? Can they apply for B2 as soon as I am granted F1 in my home country, or should they wait till I am in the US and then apply for B2.
    2. Should they show self-sponsorship or should they be sponsored by me? They have sufficient funds and proof to indicate their intent to return back to home country.

    1. Sreelatha: Your parents can apply for the B-2 visa at the same time you apply for the F-1 visa or anytime afterwards. There’s no “sponsorship” required for B-2 visitors, but they’ll need to show (a) how their U.S. trip will be paid for and (b) any financial ties to their home country.

  10. Hello,

    I B1/B2 visa expires in 2020 and my sister (american citizen) wants to filled the I130 for me and my family, ill been married for 8 years now and have 5 yrs old daugther and 10 months boy, i always travel to US for business for no more than 10 days.

    My question is: can i still travel to US with my B1/B2 visa after filling the I130???

    I have an import – export company in my country so i really need to travel to the US at least every 3 months.

    1. Filing an I-130 doesn’t cancel the B1/B2 visa. However, there’s a risk that you can be denied admission to the U.S. by the Customs and Border Protection (CBP) officer at the airport if the officer determines that you lack nonimmigrant intent, i.e. this particular trip may not be temporary or you may have abandoned your foreign residence.

  11. Hi Gary,

    I’m a Filipina living in Guangzhou with my husband who is an American teaching in a University. I have a resident permit. This summer of July my husband is going back to the USA for a vacation. We are planning to apply for me a non-immigrant visa so I can go with him for a 1 month visit. My new family want’s to meet me. My mother-in-law and and sister-in-law will cover all the expenses for the plane ticket and for other things. Is it possible for me as a Filipina to apply in Guangzhou for the visa as third country?

    Thanks,
    Iris

    1. Iris: Sure it’s possible to apply for a U.S. visa as a third-country national (i.e., apply at a U.S. Consulate outside your country of nationality). When a B (visitor) visa applicant is married to a U.S. citizen, the Consulate naturally is concerned to be sure that the applicant isn’t trying to jump the line to immigrate to the U.S. without waiting for an immigrant visa. See USCIS Processing Times for Immediate Relative I-130s Improving. So careful proof of nonimmigrant intent is necessary, often focusing on how your U.S. citizen husband has strong ties to China that will compel him to return. Also note that if you and your husband can’t pay for your own trip to the U.S., that potentially shows weak financial ties to China.

  12. I filed I-130s for my 70+ year old parents in January 2014. I want them to come to US for the summer on a B2 visas and then to return to UK to complete the process. What is the likelihood of my parents being denied entry if they have all supporting evidence that they are returning to UK. Being denied entry and having to return immediately to UK would not be a good health option for them.
    Sue

    1. If your parents are UK citizens coming to visit the U.S. for under 90 days, they may be eligible to enter without visas under the visa waiver program. But regardless of whether they are coming under that program or applying for visas, they need to prove nonimmigrant intent to be admitted. This is a “dual intent” problem: on the one hand, they intend to enter as nonimmigrants; on the other, they intend to immigrate. For more details about how immigration officers decide dual intent cases, see Proving Nonimmigrant Intent for a U.S. Visa.

  13. Hello Gary,

    I dont know if this is the right forum to include my concerns about some immigration things. I am in a same-sex marriage and my husband who is a US citizen filed Form I-130 on March 30 2014 and was approved on May 14 2014. In the notification that USCIS sent us states that if I am already in the USA, we can file Form I-485 but if we choose to do this outside the country, then file I-824. Since I am currently outside the USA, we should be filing the latter. Now, I have a scheduled licensure examination in July 2014 and needs to go to New York for the exams. Please note that I have a valid B1/B2 visa until December 2017 and been to US and out many times. I researched and read different opinions in the internet about my situation – others say that I will be automatically denied by the immigration officer at the port of entry as I have a pending immigrant application, while others suggest that I just have to pursue the travel and the examination as I have a valid B1/B2 visa and I just need to convince the immigration officer my intent of leaving the country once my examinations are done. Different opinions that make me freak out as I am eager to take the exams only and leave soon. Mr Gary, any opinion/s on my situation or case? Also, If we are to apply the I-824 now, will it increase the chance of convincing the immigration officer that I will leave the USA? Please advise and thanks a lot.

    1. Miguel,

      The governing rules cited in the attached article are clear enough. However, the application of those rules to the facts of your case is the trick. A deeper analysis of the facts would be helpful. I recommend you consult a qualified immigration attorney, whether it’s our firm or another.

  14. Gary,
    I sponsored by fiancee for a K1 visa which I believe is still 2 to 3 months away. However my fiancee already has a B1 visa (3 years old now) and has been to the US several times. She and her daughter are scheduled to spend 6 weeks with me in the U.S. during the daughter’s summer break. My fiancee still has her apartment abroad and will keep it till the visa is approved. The child is scheduled to return to school also awaiting the visa. Is there a risk she could be denied entry?

    1. Kenny,

      First, you mention that your fiancee has a “B1” visa. That’s to visit the U.S. for business only, not vacation. Take a look to confirm it’s a B1/B2 to visit the U.S. for business or pleasure.

      More importantly, as mentioned in the attached article, there is always a risk that a person with a pending K-1 petition or visa application could be denied entry as a visitor. The question is whether she can prove to the immigration official’s satisfaction that THIS TIME she intends to enter the U.S. temporarily and only for the stated purpose, not for purposes of applying for adjustment. The officer’s concern is often that some fiancees “cut the line”–trying to make the process faster and cheaper by not waiting abroad for the K-1.

      You mention some evidence that your fiancee may be compelled to return abroad after the temporary visit (apartment, child’s school). Of course, the officer’s job is to consider the totality of the evidence based on what your fiancee and her child say and do, the documents in their possession, and the possessions they bring in their luggage (which the officer has the power to search), etc. The totality of the facts may include whether your fiancee has a job she needs to return to abroad, whether she rented out her apartment abroad to somebody else, whether she’s packed her wedding dress in her luggage, etc.

      While there’s always a risk that entry will be denied, the trick is to work on a strategy to minimize the risk, and to decide whether the level of risk is acceptable.

      Most importantly, don’t lie to the customs officer. A misrepresentation could cause an individual to become permanently inadmissible to the U.S.

      When our firm works on family-based immigration cases for relatives abroad, we always advise on issues related to temporary trips to the U.S. in the meantime.

  15. Thank you Gary for your spectacular gold mine of immigration info. If I might impose on you a little more , I would appreciate some insight.

    I am CDN, my husband and our two children are US Citizens. We were married in ’97.

    I was granted permanent residence and lived in US for several years. Returned to Canada after 9/11 as husband found job up here. My green card has since expired. But thankfully, he is once again back at a major US airline and we have sold our house up here and are just finishing the purchase on a home in US. We submitted my I-130 in March 2014 and are waiting, waiting, waiting….

    My question is this: is there any kind of visa (B?) that would allow me to join my kids when school starts in September? I will be staying with family and friends in Canada while I wait for the Montreal interview. The first time around, they allowed me to enter the States while we went through the approval process, but things have certainly changed….

    Thank you
    Kristen

    1. Kristen,

      As a Canadian citizen, you don’t need a visa to enter as a B1 or B2 (visitor for business or pleasure). It’s sometimes possible to use B2 status to temporarily accompany children in school. However, as you can see from my above article, entering and staying as a B1 or B2 is tricky where you intend to immigrate because the status requires “nonimmigrant intent.” This is a very fact-intensive issue. I suggest you consult with an immigration lawyer.

    2. Thank you Gary for your response!

      That is how I interpreted it too. We want everything above-board and open, but cannot seem to find a way to present our situation to the immigration services (there doesn’t seem to be an official form for “…but this is my second time, my kids are US citizens and I am special darnnit’)!! 🙂

      Though I know you immigration lawyers possess many super-powers, the speed of the USCIS center is Kryptonite to us all!!

      Thanks again!

  16. Hi Gary,

    I’m a Taiwanese citizen, and my fiancée is an American. I have entered USA with ESTA a few times in the past two year and never overstayed.

    We already made plan of getting married next month. A lawyer suggested we get married in the U.S. and get all the documents locally, then concurrently file I-130/I-485 to adjust to lawful permanent resident status. Within 90 days of filing, I can obtain a travel document and work permit while my application is pending. What do you think?

    Many thanks.

    1. Helena,

      Sounds like this may be a bad plan. A person who plans to to first enter the U.S. to get married and then adjust to lawful permanent resident status needs to enter with a K-1 (fiancee) visa instead of under the visa waiver program (ESTA). An attempt to enter under the visa waiver program with this plan could result in summary deportation by the Customs officer at the airport, in making a misrepresentation to the officer that (if later discovered) results in your later permanent ineligibility to enter the U.S., or in the discretionary denial of your Form I-485, Application to Adjustment Status. See Parts 3.3 and 3.4 above.

  17. Yo solicite a mi hijo en el 2010, aplique por 1-130, esperando que llegue el corte de fecha , y asi proseguir la peticion, pero luego mi hijo aplico en su pais Venezuela por la visa B1, y ha venido varias veces a US, por menos de 3 meses, esta visa B1 interfiere con la peticion 1-130?

    Le agradezco su respuesta.

  18. Hi Gary,

    I’m an LPR and will file a Form I-130, Petition for Alien Relative, for my husband, but we want to apply for a visitor visa so we can spend some time in the U.S. then go back and forth to his country while waiting for his immigrant visa to be approved. My question is, will it affect his I-130 if the visitor’s visa is denied? Or if the visitor’s visa is approved, is there a chance he will be denied entry to the US? We dont want to wait 13 months to see each other. Thank you so much.

    1. Hi Nerissa,

      Denial of a B1/B2 (visitor for business or pleasure) visa on the basis that one lacks the required nonimmigrant intent is NOT a basis for denial of a Form I-130, Petition for Alien Relative, or the subsequent immigrant visa.

      However, this article explains that (a) inability to prove nonimmigrant intent may lead to denial of a B1/B2 visa (or of admission to the U.S. as a visitor); and (b) filing an I-130 may make it more difficult to prove nonimmigrant intent. The bottom line is that while your husband is waiting to immigrate a consular officer may or may not believe that your husband truly intends to enter the U.S. just temporarily while keeping his main residence (i.e., home, job, school, relatives, assets, and/or other ties) abroad. If the officer believes your husband is just trying to cut in line by moving to the U.S. before the immigrant visa is approved, then a visitor’s visa may be denied. The result depends on what evidence your husband has, how well your husband’s testimony and evidence are presented, and how the officer evaluates that testimony and evidence.

  19. Gary,
    A prospective graduate student of ours is having difficulty with proving intent to return to China at the end of her invited trip. We invited her to attend and participate in sessions specifically intended to inform our faculty and administrators of her experiences during her undergraduate degree program in China while giving her the opportunity to participate in a one-day training to enhance her knowledge and skills as a K-12 teacher in China when she returns at the completion of her two-week stay.
    I believe she has enough to show intent to return (e.g., she is employed as a certified teacher, she has never left China before, she lives with both parents that love and need her, she loves her country and has no desire to leave China permanently, and must return to keep her employment. She has a passion for teaching English as a Second Language but realizes she needs additional training and resources to enhance her knowledge and skills as a teacher.
    I believe her problem is with being able to communicate this to the officer within the 2-5 minute period of her interview. She has applied for and been denied her B1/B2 visa twice already and, without reassurances of obtaining her visa, her parents will not allow her to try again. They feel it is hopeless and a waste of the repeated $160 application fee and transportation costs. Is it hopeless? What can she do? She is a very knowledgeable and talented scholar and has much potential for helping out the people of China if given the opportunity.
    The graduate degree program she has applied for will be completed online with her living and working in China, so she will not be able to apply for an F-1 visa later now or later on. Everyone involved with the plans she had for this travel are very discouraged by the process and practice of swiftly denying most applicants the opportunity to travel to the US for well founded purposes.
    Please help!!! She has a promising future in China.

    Robert

    1. Robert,

      Just a couple points regarding your analysis of this prospective graduate student’s ability to prove nonimmigrant intent: having a job in China is an important tie, but living with her parents (as oppposed to having a spouse, child, and own real estate) isn’t seen as a strong tie by consular officers. Similarly, having never left China (as opposed to having a strong record of traveling abroad but returning China timely) isn’t seen as a strong tie.

      One way to look at the big picture is that currently about 90% of F-1 (student) visa applications by Chinese students are being approved, so consular officers should apply roughly analogous standards for a prospective student considering visiting the U.S. to consider enrollment in an online degree program. In this light, it’s understandable that the applicant is young, single, has no real estate, and has no travel history. More relevant questions are (a) whether she is a “bona fide” prospective student, (b) whether she’s likely to return to her job in China after the U.S. trip, and (c) whether the purpose and itinerary for the trip are clear to the consular officer. As to her bona fides as a student, proof of her TOEFL score may be important. Maybe a copy of her teacher’s credentials. Perhaps a copy of her application to your institution explaining her reasons for applying could be helpful. Undergraduate degree and transcripts too. As to the likelihood of her returning to her job in China, I wonder whether her current employer is aware of her intention to pursue the master’s degree, whether it’s encouraged, and whether completion of the degree could result in a promotion or pay bump. As to the purpose and itinerary for the trip, a clear and specific invitation letter from the college could go a long way.

      The college has an important role to play. Approval of visa applications turn on trust–trust by the consular officer that the INVITING PARTY and the applicant will stick to the plans they lay out in the application. Here’s an analogy. Imagine Bob asks you to lend him ten dollars. You don’t know Bob, but you may make this modest loan if your mutual friend Jane vouches for his creditworthiness. Similarly, in a visa application, if the consular officer doesn’t know the prospective student but knows the college then this can help. Get to know the education liaison at the U.S. Consulate’s visa section, and perhaps the foreign commercial service–what are their key concerns in similar cases? What’s the graduation rate for international students (and Chinese students in particular) admitted to the school? What are your program graduates currently doing internationally (and in China)? Is the orientation for prospective students a formal program that’s been done in prior years too, or more ad hoc just for this student? Are there any high-profile graduates of the college in China? You can familiarize the Consulate through the evidence in this case and through building an ongoing relationship.

      Some of the things that an immigration lawyer can do are to:

      1. help the college learn what were the specific factual reasons for the visa denial and how they can be overcome;

      2. help to document visa eligibility through the evidence submitted with the application;

      3. help to prepare the visa applicant to know what questions to expect from the consular officer and how to respond in a way that is truthful and helpful in convincing the officer of her visa eligibility; and

      4. help the college understand the Consulate’s concerns in similar cases and help to open the channels of communication necessary to build a relationship of trust.

  20. I am a US Citizen and my wife came here on a K1 and now has her 10 year LPR card. She invited her mother, sister and niece to visit for a month in July 2015. They scheduled their interview as a group and went to the Consulate in Shenyang (a 15 hour train ride). In the DS160 application there were no places to submit proof of owning a residence or to submit any documents in advance.

    They brought many documents to the interview to show:

    1) They own two houses – One is their mothers the other is her sister who is married and husband is not traveling
    2) There are funds to cover their stay while they are her – I provided my bank statement
    3) A letter from us stating the purpose of the visit
    4) Copies of my passport, her LPR card
    5) Their Hukou information
    6) Letter from the sisters employer granting her temporary time off

    He only asked the sister questions, did not ask a single question to the mother or niece. She asked the sister about her job.

    The *only* document they looked at was my wife’s LPR card. He studied it and then proclaimed, “your sister is not eligible to sponsor your visit”. He never asked about the residences, never asked any questions to try to ascertain whether she is a immigration risk. All the information he had to go on was in the DS160 application.

    Visa was denied on section 214b

    The process seems completely unfair and arbitrary. Is there any recourse?

    James

    1. James,

      I sympathize with your family’s experience of the visa interview process.

      As I mentioned above, there is no “magic list” of documents that will necessarily prove nonimmigrant intent. Nevertheless, the regulations state that “All documents and other evidence presented by the alien, including briefs submitted by attorneys or other representatives, shall be considered by the consular officer.” 22 C.F.R. § 41.105(a). Just bringing the evidence to the Consulate isn’t enough. It must also be presented to the officer, just as testimony must be affirmatively offered. That’s tough given that many interviews last 2 minutes or less and that the officer may well not ask whether the applicant, “do you have any additional evidence or testimony you would like to present?”

      The goal of this article is to explain the law related to proving nonimmigrant intent. I’ll need to leave for a separate article discussion of what recourse there is after a visa denial.

  21. Hi

    My visitor visa was declined yesterday. Section 214 b I think it was based on the fact that I’m divorced, will be visiting a friend I met online 4 years ago. My friend in the States has provided a letter of support, and this is meant to be a legitimate holiday. We have no romantic ties. I have a job, home and kids here at home, but the officer didn’t give me the chance to highlight those factors…

    The officer didn’t ask any questions relating to my ties here: the D160 didn’t provide much opportunity to capture that info. He also didn’t look at any documents.

    I hope to highlight my ties here with the next interview – they’ll see that I’ve been declined, so I will mention I was and reapplied because I felt I have circumstances which wasn’t asked about during initial interview, and wish to have it considered.
    I reapplied again, captured same information but put down my best friend as paying for my trip (flight was my birthday gift from her, and she’s drafting a letter to confirm as well as provide evidence of payment for the flight) previously I had indicated I was paying, because at the time of application I didn’t know she was gifting me with the trip!

    My daughter’s father and I have a parenting plan drawn up by a lawyer in 2012, stating we have joint, shared responsibility for her. He is also getting an affidavit to prove that he is her father etc and to state this holidays is his turn to have her.

    I have a letter from my work, as well as unabridged certificates for both children. Also my lease agreement showing my lease period is till August 2015.

    I plan to draw up an itinerary of places to visit within the state I’ll be visiting. My flights are booked for 27/12/2014, return 20/01/2015.

  22. Hi Gary,

    I have a question to you. I’m a green card holder (temporary green card). My mom was denied in US visa in august of 2014. The reason was that I (her daughter) came to US with B1/B2 visa and when got married, so I’ve changed my immigrant status. she has no intention to stay there and she has a strong connection with job (she has been working 25 years in her company and she has 3 years till she can retire), she is married and she has her mom who needs care. All of that was approved by docs. Also my husband (US Citizen) and I sent my mom invitation to spent her vacation with us, including copy of his citizenship, our marriage certificate, pay stubs and letters from our employers.
    When my mom can apply for tourist visa again? And what docs she can provide? by the way the officer didn’t check any of those docs. Is that possible to apply for B1/B2 visa with lawyer?

    Thank you inn advance!

  23. Gary,
    I am a US citizen and my girlfriend is from the UK. We met last year and want to get married and live in the US. We both are finalizing divorces that will be officially over in March of 2015. We are well read of the spousal and fiancé visa programs and procedures and came to the understanding that we could not file for a fiancé visa until after divorces became official. In the meantime she visited twice( 5 days in August and 3 weeks in November) with her Visa waiver status. Each time she brought some personal effects to stay as our long range plan is marriage through fiancé waiver program. On her third trip (January 17) she attempted to enter the US with three bags of luggage, was denied entry, held in a detention cell and sent back to UK under the presumption of planning to not leave the US. I feel that we were trying to work with the laws and regulations…she was planning on leaving, she had a return ticket for March 1. The officer said the evidence made it presumptive that she was planning on staying.
    My questions are: 1) does she immediately lose her visa waiver status? 2) Can we still apply for fiancé visa or if I go there and marry her a spousal visa 3) is she banned permanently or for set amount of years?

  24. My previous post says “Your comment is awaiting moderation.” Do I need to do anything to post it?

    Thank you,
    Jay

  25. Hi Gary,
    Thank you so much for providing advise. I would like your opinion in this matter.
    My brother (> 21y.o.) was requested by my mother (US citizen) on a I-130 on 2009. The approval notice came on 2011. His receipt date is 10/2009. We originally were told the process would take 5 years for him to come join our family, but now they are saying the process will take another 5 years.

    He is getting depressed as the only family members of who lived in his country have died and now most of his family is in the U.S. Is there any way to speed up his process? without relying on a work, or fiancé visa?

    Thank you!

  26. Mr Chodrow,

    If my wife’s sister (USCitizen), files a I-130 for her, does it make it harder for me to enter the US on a b1/b2 visa?
    I ask this because, on the I-130, there is a column asking for the names of the beneficiary (my wife’s) spouse and kids names (Even though details such as passport numbers are not asked)
    Thank you, kindly reply

  27. Hello Gary,
    My husband is from the U.K. and we plan to settle there permanently after I finish my doctorate (anticipated graduation in 2017). I was born in the U.K. but became a U.S. citizen at a young age and have lived here most of my life. My husband is working on a full time PhD in the U.K. and will not be seeking residency here in the United States. However, he would like to be able to visit me while I’m in my graduate program to make our time apart more manageable.

    When we were engaged back in 2014, were advised to file a K1 non-immigrant fiancé visa so that my husband could spend time in the U.S. prior to the wedding. It was approved and initiated in January, 2015. We were married before the visa expired in April, 2015 and thus abided by the terms of the visa. We were under the impression that the K1 visa simply provided a way for my husband to be in the U.S. in order for us to marry here legally. We did not believe that filing the K1 would be interpreted as showing intent to file for legal permanent residency (LPR) and we have not filed for LPR or any other type of immigrant visa.

    In June, my husband flew back to the U.K. to differentiate his PhD, to attend a conference, to help his family’s business, and to spend time with his ill grandmother. He was scheduled to fly to the U.S. from Dublin on August 13th but the border control officers denied entry for my husband citing a missing Advanced Parole stamp. We did not believe that such travel approval was necessary given that we have not petitioned for LPR and have no visa application pending. The border control officers were astounded that my husband had been allowed to leave the U.S. in June without this being flagged by border control. My husband has always been completely honest about the K1 visa and, because we do not have a visa application pending and because nobody informed him of the requirements when leaving the U.S., he did not know that he doing anything wrong. My husband has a valid ESTA visa waiver and a return flight booked back to the U.K. for October and would simply like to be allowed to visit me.

    We are now aware that we did not fully understand the implications of getting married using the K1 visa and would not have filed it if we thought that further immigration action was mandatory (most websites simply say “if your spouse would like to live and work in the U.S. after you are married, then you must file for a LPR” – this was not the case with us and we are not seeking residency).

    We need help explaining to border control that my husband is not seeking to immigrate to the United States. My husband has numerous ties to his home in the U.K. including being in the middle of a full time PhD, owning property and a car, and being heavily invested in the success of the business started by his grandfather. He has also been guaranteed employment at his university following his PhD’s completion and has no intention of pursuing employment here in the U.S.. My husband has countless contacts and references who can attest to the authenticity of these ties and who would happily vouch for him.

    How do we convince border control that my husband is in no way interested in immigrating to the U.S.???? The officers in Dublin would not let my husband get a single word in and simply said ‘no’ upon seeing the K1. We now understand that using the K1 may have shot us in the foot but we don’t know what to do as he is stuck over in the U.K. and I am back home in the U.S. and don’t seem to have many options. Please help!!!!!

    1. Rebecca,

      A bit of background about visa options for a foreign national to enter the U.S. for purposes of getting married to a citizen. As mentioned above, a foreign national intending to marry a citizen may be admitted to the U.S. as a B-2 visitior (with a visa or under the visa waiver program) if he or she can prove an intention to return to an unabandoned residence abroad soon after the marriage. 9 FAM 41.31 N14.1-1. A K-1 fiancé(e) visa also can be used to enter the U.S. for purposes of marriage to a U.S. citizen so long as, among other things, the couple intends to marry within 90 days of admission. INA § 214(d). The fiancé(e) will be admitted to the U.S. for a period of 90 days. CBP Inspector’s Field Manual § 15.4(k)(1).

      Contrary to what you’ve written, it is not mandatory that a fiancé(e) admitted in K-1 status subsequently file a Form I-485, Application to Adjust Status, to become a permanent resident on the basis of the marriage. Federal regulations state that if the marriage has taken place within 90 days of the the fiancé(e)’s admisison in K-1 status, the fiancé(e) “may apply for adjustment of status to lawful permanent resident” (emphasis added).

      A couple thoughts about your husband’s case. First, it’s not clear from your summary, but if your husband stayed in the U.S. longer than the 90 days authorized by the U.S. Customs and Border Protection inspector who admitted him, this may constitute a violation of status and could impact his future ability to prove nonimmigrant intent. Second, even though a K-1 fiancé(e) isn’t required to file a Form I-485, still, in determining whether your husband has the nonimmigrant intent required to enter as a B-2 visitor, it’s not error for the CBP officer to consider the prior K-1 status. Under law, your husband bears the burden of proving of proving nonimmigrant intent and–rightly or wrongly–the CBP officer determined that your husband didn’t meet his burden. Finally, given that your husband now has a record of withdrawing his application for admission, before seeking to enter the U.S. again, your husband may find it valuable to consult with our firm or another competent immigration lawyer about his options.

  28. Hi Gary,

    My mother is a US citizen who filed I-130 for me (married above 21) about 4 years ago. I already had a B1/B2 before she filed, but it expired recently and I need to renew it. (Using the last visa, I have entered the US twice after the I-130 was filed). Will this be enough evidence to the visa officer that I do not intend to stay there illegally? Or do you suggest bringing in any additional evidence to the officer?

    1. Tarek, I tell my clients who are preparing for nonimmigrant visa interviews to bring all applicable evidence of nonimmigrant intent. It’s better to be safe than sorry.

  29. Hi Gary

    I am a Canadian Citizen married to a US citizen with 3 children (all US citizens) and all of us are currently based in Alberta Canada. We have been married for almost 7 years with my wife becoming a naturalized US citizen 4 years ago. We never initiated the process for her to sponsor me for a US visa.

    Recently I started looking for job opportunities in the US with the intention of using the TN1 visa to take up any job offer as an Engineer. However, it appears to be quite difficult to be considered for a job in the US without existing legal status. So we are considering filing the form I-130 petitions through my wife. The concern here though, is that I do have some very good job leads that could result in an offer within the next couple of months at which time the spousal visa process would still be ongoing. And we have heard that if there having an ongoing spousal visa application would result in denial of TN1 status even with a job offer and complete documentation. Is this true? Or would I still be able to get TN1 visa approved even while my wife had an ongoing petition?

    Alternatively, would it be wiser to put off the spousal petition/application and wait for the potential job offer so that I could instead apply for a TN? The other concern is we also heard that being married to US citizen would probably further reduce my chances of obtaining a TN visa despite being able to show that my wife and children plan to remain in Canada while I worked in the US. If so, then maybe we should just go ahead and submit the I-130 petition since the longer we wait to file the longer it will take to be approved. We were hoping the fact that my wife hasn’t previously filed for me in the 7 years since we wed would help prove my intent to return to Canada during the TN application.

    What do you think Gary? Any suggestions?

    Thanks

    1. Ola: See Part 4.6 above. Filing of the I-130 may be a negative factor, when considered together with all other relevant evidence, in determining whether an individual has the necessary nonimmigrant intent for TN status. Filing of a subsequent immigrant visa application or Form I-485, Application to Adjust Status would by itself be a basis for denying TN status. So there are issues of timing to consider–when is it wise/unwise to seek entry in TN status? Also, the I-130 would just be one of many factors considered in determining whether you have proper nonimmigrant intent.

  30. Hi Gary,

    First off, thank you for the wealth of information you’ve provided on your site regarding “dual intent.” This seems to be the issue I am facing. I am an American citizen, married to a Kenyan woman, we have a child together, and we both reside in Kenya. Just a week ago, I filed an I-130 for her. Not two days later, my wife was invited to be a speaker for a prestigious event at the University of California at Berkely. This takes place less than two months from now (in April). The organization who has invited her has said they can provide support for her visa application.

    Any direction at all would be really appreciated!

    Thanks
    Sim

    1. Sim: For your wife to be granted a B-1 visa, she’ll bear the burden of proving her to the consular officer her dual intent: that she intends to enter the U.S. solely for legitimate business purposes (i.e., giving a lecture) and then she will return to her unabandoned residence abroad. Of course, consider all the nonimmigrant intent factors for her listed in the article.

      But, perhaps most importantly, consider all the evidence as to whether you, as the U.S. citizen husband, are intending to abandon your residence abroad. In cases where a B visa applicant is married to a U.S. citizen, the consular officer is apt to try to guess whether the applicant is trying to jump the line for an immigrant visa. What I mean is that since an immigrant visa can take 6-12 months or so, on average, some people try to avoid that delay by using a B visa to move to the U.S., which is not permissible under the law. So focus on proving that you are not ready to move back to the U.S. now. For example, maybe you have an employment contract that you have not yet completed, a business you have not yet liquidated, real estate that you have not yet sold, etc., meaning that you (and hence your wife) are not yet ready to move to the U.S.

      Finally, the organization which has invited your wife, to the extent they have personal knowledge of the relevant facts, can confirm your wife’s nonimmigrant intent.

      1. Thanks for the reply Gary. Could being denied a non-immigrant visa while her I-130 is in process, count as a “bad mark” or “red flag” and impact her ongoing immigrant visa application?

        1. A NONIMMIGRANT visa refusal under section 214(b) of the Immigration and Nationality Act for failure to prove nonimmigrant intent is not a negative factor in a subsequent application for an IMMIGRANT visa. Of course, it’s always important to be truthful in a visa application because a willful misrepresentation could make a person permanently ineligible for U.S. visas.

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