Must an Immigrant Visa Applicant Intend to Live in the U.S. Permanently?

movingClients often ask whether to qualify for an immigrant visa (i.e., a green card) they must intend to move to the U.S. permanently. Take, for example, a father who owns a business in China. Can he apply for an EB-5 investor green card so that his teenage son can accompany him to the U.S., even if the father doesn’t intend to reside there?

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). But there’s no requirement to have such an intention in the definition of “immigrant” or in the listed grounds of inegligibility. INA §§ 212(a), 221(g); see 22 C.F.R. § 42.81.

As a matter of public policy, it makes sense that the law doesn’t require such an intention. 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. Fortunately, the law does not require such irrational behavior.

So the father with a business in China can apply for an EB-5 investor immigrant visa to get green cards for himself and his son, even if the father doesn’t intent to reside permanently in the U.S.

But caution. A person who gets a green card but doesn’t move to the U.S. will eventually be at risk of losing it due to abandonment. Also, a U.S. citizen or permanent resident who sponsors a family member for immigration will normally be required to be domiciled in the U.S. in order to complete the required Form I-864, Affidavit of Support.

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