Immigration Intent

I. Categories of Intent with Respect to Immigration

With respect to immigration, the mental intent of the alien applying for admission into the United States plays a significant role. In fact, the examination of the motive of an alien and the actual purpose for applying are taken into consideration in whether an alien will be admitted or granted a visa. To that end, categories of intentions of the alien applicant are used to classify applicants and determine whether they meet the criteria for the specific status that they seek.

II. Immigration Intent

Generally speaking, all aliens coming to the United Stated have the broad intention of entering the country. However, what is specifically looked at is the purpose for entering the United States as well as the duration of the stay. In terms of the intent of the duration, there are two categories: immigrant intent (to reside in the United States permanently) and non-immigrant intent (to reside in the United States temporarily).

A. Immigrant Intent

Under the Immigration and Nationality Act (INA), there is a legal presumption that every alien seeking to enter the United States is an immigrant. INA § 214(b). Because of this presumption, an immigrant intent is imputed onto the alien. Immigrant intent is the intention of entering the United States with the purpose of residing there permanently. However, this presumption is not applied to certain visa applications, including: H and L visas. Additionally, this presumption of immigrant intent can be rebutted by establishing entitlement to a non-immigrant status.

B. Non-immigrant Intent

Establishing entitlement to a non-immigrant status entails meeting the required criteria. While each non-immigrant status will differ in what is needed, the common requirement is that the alien has a non-immigrant intent. To have non-immigrant intent, an alien must demonstrate that the alien:
(1) Maintains a foreign residence outside the United States;
(2) Has no intention of giving up or abandoning the foreign residence; AND
(3) Demonstrates a present intent to leave the United States upon the termination of the approved visa.
In some instances, the alien’s ties to the home country will also be considered. These ties include family, social, and economic connections to the home country the alien may have. Furthermore, these ties to the home country must be greater than the alien’s ties to the United States. For example, if an alien has more friends and family living in the United States than in the alien’s home country, the ties to the home country will be seen as weak making the intent to depart the United States seem less likely. Thus, merely having a lingering connection to the home country may not be sufficient. Lastly, the general requirement of non-immigrant intent is exclusive from immigrant intent; meaning where non-immigrant intent is required an alien cannot also have the intent to remain permanently in the United States. Nevertheless, there are some exceptions.

C. Dual Intent

Although most non-immigrant visas only permit non-immigrant intent by the alien, under the dual intent doctrine, certain non-immigrant visas allow for the alien to also have an immigrant intent. United States Citizenship and Immigration Services (USCIS) recognizes dual intent for certain H, L, and O visa categories. Thus, although a non-immigrant alien must demonstrate the non-immigrant intent, the alien may nonetheless have both a short-term intent to leave and a long-term intent to permanently remain in or immigrate to the United States.

Dual intent visa holders may apply for adjustment of status (AOS) and/or change of status (COS). Additionally, they may also change from one non-immigrant visa to another. Furthermore, dual intent visa holders are allowed to apply for AOS or COS at any time after they arrive in the United States; whereas other non-immigrant visa holders generally must wait 30, 60, or 90 days before applying to avoid presumptions of suspect intent. As such, timing is another factor for establishing intent.

III. Timing of Intent

The timing of when the alien had a particular immigration intent is also an important factor. Regarding non-immigrant visas, there are two points in time where an alien must establish non-immigrant intent: (1) at the time of application for the visa (with the consular officer), and (2) at the time of application for admission (with the immigration officer). Furthermore, what the officers look for is the visa applicant’s present intent to leave the United States at the conclusion of approved activities.

A. Present Intent

Present intent often refers to the immediate intent of the alien applicant. This is usually the reason why the alien is seeking to enter the United States or the purpose for which entry is sought. For example, if an alien applies for an F-1 student visa, the intent of the alien should be to study at a college or university and then to depart the United States at the conclusion of the studies. Thus, the present intent is the intent the alien has with the visa the alien currently applied for.

B. Future Intent

While officers look for a present intent to leave the United States at some point, or that the alien’s stay is temporary, issues may arise with respect to an alien’s future intent. This concern comes from the possibility that an alien will change his or her mind about the initial non-immigrant intent. The basic scenario is that an alien enters the United States on a non-immigrant status, but soon afterwards attempts to change the status to an immigrant status for permanent residency. In fact, present act can lead to a showing of future intent. For example, if a non-immigrant visa applicant also has a pending or approved immigrant visa application, an officer may conclude that an alien has a future intent to immigrate and not leave the United States. Thus, this type of future intent, no matter how far off the intent may arise, may lead an officer to refuse a visa.

C. Change of Intent

Because certain actions by an alien would call into question the genuineness of the stated present intent for a non-immigrant visa, USCIS may believe that an applicant was dishonest with his or her application. This usually arises because an applicant has a change of intent, initially intending non-immigrant status but now intending immigrant status. Where a non-immigrant visa holder applies for COS or AOS, doing so brings the question of whether the applicant had a fraudulent intent or preconceived intent at the time he or she was granted the non-immigrant visa. Thus, USCIS has discretion over the approval of COS and AOS applications and can deny applications if presumed fraudulent or if the alien applicant had preconceived intent.

Although an alien with non-immigrant status is not strictly prohibited from adjusting or changing status, the timing of the adjustment or change can give rise to a presumption that the original intent for the non-immigrant status was for something other than temporary stay. Based on when the application was made, the application may be presumed as fraudulent or that the alien had a preconceived intent.

1. Fraudulent Intent

An intention for visa fraud may be presumed where a COS or AOS application is submitted within the first 30 days of entry by a non-immigrant visa holder. A visa holder changing his or her status in less than one month of entering the United States gives the perception that the original intent of the alien was not in line with the non-immigrant visa that was applied for. As such, the alien is seen as having misrepresented his or her intentions and thus committed a fraud to obtain a different visa. Not only will the COS or AOS be denied for fraud, but the applicant may face other consequences as well.

2. Preconceived Intent

As a general rule, an alien cannot have preconceived intent to enter the United States for a purpose different from that permitted under his or her visa. Simply put, the preconceived intent is the intention to remain in the United States and not depart upon the end of the non-immigrant visa. Alternatively, it is the intent to be in the status now being requested as opposed to the one that was approved. As such, applications can be denied on the theory that the applicant tried to circumvent the visa process by entering on one visa and changing to another status after entry. Additionally, if USCIS believes that an application for change of status is just an attempt to prolong an alien’s stay indefinitely, USCIS may deny a COS application on the theory that the alien abandoned his or her non-immigrant intent.

Preconceived intent is presumed when an alien applies for AOS or COS within the first 60 days of entry. However, the presumption may be rebutted by showing evidence of a change of circumstance. Thus, in essence, the applicant must show that the “present intent” at the time of the application of the non-immigrant status was for non-immigrant reasons with the intention to depart afterwards, and that the new “future intent” for immigrant status came from a change of circumstance and not a long, hidden, latent intent.

IV. Reconciling Present Non-immigrant Intent and Future Immigrant Intent

The idea of not having a preconceived intent of any sort almost seems impossible. How could a person coming to the United States say that at no point in their life was there an intention to permanently reside in the United States? Furthermore, how could a person assure that he or she will not later develop an intention to permanently reside in the United States? Because of the reality of the situation, as well as for practical reasons, there are some exceptions when it comes to dealing with present and future intent. Additionally, the distinction between immigrant intent and immigrant desire has been acknowledged.

A. Exceptions

There are some exceptions when it comes to reconciling present non-immigrant intent and future immigrant intent. According to the U.S. Department of State’s Foreign Affairs Manual (FAM), an intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary. For example, with respect to F-1 student visas, the FAM instructs officers to focus on the applicant’s immediate intent rather than try to predict may or may not do when the studies have concluded. It further states that the applicant must possess the present intent to depart the United States at the conclusion of approved activities and that the intention may change is not a sufficient reason to refuse a visa. Overall, the fact that a student may apply to change or adjust status in the future is not a basis to refuse a visa application if the present intent for the F-1 is to depart at the end of the studies. Thus, there are situations where a future intent will not immediately prevent an approval for a non-immigrant visa.

B. Distinguishing Immigrant Intent and Immigrant Desire

The nuances between intent and desire have been an important factor in separating present non-immigrant intent and future immigrant intent. In the case Brownell v. Carija, the court held that an alien who originally entered under a non-immigrant visa can have a “desire or purpose or intent” to remain in the U.S. if the law affords him such an opportunity. As such, the desire to remain must be distinguished from the intent to remain. Furthermore, the Board of Immigration Appeals held that a desire to remain in the U.S. in accordance with its laws is not necessarily inconsistent with lawful non-immigrant status. Thus, in situations with non-immigrant status, immigrant intent is the purpose to remain in the U.S. without lawful permission while immigrant desire is the wish to stay in the U.S. if the law affords it.

The distinction is easier to reconcile when “intent” is described as a purpose, and “desire” as a want or wish. Non-immigrants may enter the U.S. and at some point, want to become permanent residents, thus having a desire to immigrate. However, their initial entry into the U.S. was not for the purpose of becoming a permanent resident, but rather a temporary stay (non-immigrant intent). As a desire, immigration is something that is wanted or wished for. As an intent or purpose, immigration is the current motive or goal, something that may lead to a belief that the applicant is scheming to achieve. It is not unreasonable for a non-immigrant applicant to have a present non-immigrant intent and a future immigrant desire at the same time. Thus, where a non-immigrant is afforded the lawful opportunity to permanently reside in the U.S., the distinction should be made between future immigrant desire and future immigrant intent to demonstrate that the non-immigrant entered the U.S. for a sincere non-immigrant purpose.