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Article | Nov 19, 2008

Consular Processing for Nonimmigrant Visas: A Matter of Intent

Almost every foreign national who does not already have permission to enter the United States must apply for a visa in order to travel to the United States. In a perfect world, this process would involve simply stating one’s intentions and proving one’s identity; in the modern world, however, the process inherently involves alleviating the government’s suspicions of fraud and illegal immigration activity.

Introduction and Basic Terminology
Consular processing occurs when a foreign national submits a visa application to a U.S. Consulate outside the U.S. U.S. Consulates are operated by the U.S. Department of State and are a key component of the U.S. Embassy’s operations in a given country. A U.S. Visa—as opposed to an immigration status—is a document which is stamped onto a full page of a person’s passport and allows that person to present himself at a U.S. Port of Entry (border office at an airport, seaport, or land border) for admission to the U.S. in a particular status. For example, a person might submit an application for a tourist/visitor (or B-2) visa at the U.S. Consulate in Brussels, Belgium; if approved, he might then arrive at Logan Airport in Boston, and present the visa, seeking admission to the U.S. as a visitor; the border official might then admit that person to the U.S. in visitor status, granting a period of stay in the U.S. of up to six months.

In submitting a visa application, a foreign national would apply for either an immigrant or nonimmigrant visa. An immigrant visa is a visa to enter the U.S. as a lawful permanent resident, the status commonly associated with the term “green card.” This provides the foreign national with the ability to permanently live in, work in, and travel to and from the U.S. A nonimmigrant visa is tied to a temporary stay in the U.S. The subject of this article is the unique analysis that a Consular Officer must undertake to determine whether a nonimmigrant visa applicant truly intends to be in the U.S. temporarily.

Nonimmigrant vs. Immigrant Intent: Presumed Guilty Until Proven Innocent
With the exception of certain—but not all—employment-based nonimmigrant classifications (e.g., H, L, O, and P), nonimmigrant visa (NIV) applicants are required to show that they intend to remain in the U.S. temporarily and that they have an intent to return to their home countries at the conclusion of their temporary stay in the U.S.; in some cases, NIV applicants are even required to show that they have an unabandoned foreign residence to which they intend to return.

The requirement to demonstrate nonimmigrant intent is considered so important that a presumption of immigrant intent has been written into the law. This presumption requires that, when presented with a nonimmigrant visa application (with limited exceptions), a consular official must begin with the presumption that the applicant is an intending immigrant, and must not approve the application until adequate evidence is presented to rebut or overcome that presumption. That is, when an applicant presents a visa application indicating on its face that a visa is being requested for temporary entry to the U.S., the officer must nonetheless presume that the applicant actually intends to enter the U.S. for the purpose of remaining permanently in the country—whether legally or illegally. Therefore, applicants seeking, for example, to visit (B-2), pursue education (F-1), or participate in an exchange program (J-1), must be prepared to present evidence to show not only that they meet the qualifications of the visa they are requesting, but that they have an intent to return to their home countries following a temporary stay in the U.S. This requires evidence of family ties, employment ties, property ties, financial ties, or other ties to the home country.

Exception to the Rule: The Doctrine of Dual Intent
As noted above, even though nonimmigrants must demonstrate that they intend to remain in the U.S. temporarily, certain employment-based nonimmigrants are permitted to have both a short-term intent to be in the U.S. temporarily and a long-term intent to remain permanently. Due to substantial backlogs (and quotas) regarding the availability of permanent residence in the U.S. based on offers of employment, many employers and employees rely on nonimmigrant employment-based visa classifications so that foreign nationals can be present and employed in the U.S. while they are waiting for the permanent resident process to progress. Recognizing that an insistence on the demonstration of nonimmigrant intent for the issuance of nonimmigrant visas to certain foreign workers would be unfair to foreign nationals subject to backlogs and quotas—and gravely detrimental to the productivity of U.S. businesses and the competitiveness and stability of the U.S. economy—the U.S. Department of State and the U.S. Department of Homeland Security have established the doctrine of dual intent in these narrow circumstances.

The Prevalence of Fraud in Nonimmigrant Visa Processing
In some countries, it is very difficult—if not virtually impossible—to obtain certain nonimmigrant visa classifications (especially student and visitor classifications) because fraud is so prevalent. Consular officials have learned that many applicants are willing to go to great lengths to create a false impression that they intend to return home after temporarily entering the U.S., so that they can actually enter the U.S. and remain illegally. For example, round-trip plane tickets are often insufficient evidence of nonimmigrant intent, as many applicants are willing to incur the added expense of purchasing travel arrangements that they do not intend to use. Applicants will even go as far as to make tuition payments to colleges and universities that they do not intend to attend.

For legitimate visa applicants who do possess the requisite nonimmigrant intent, this fraudulent activity can make the nonimmigrant visa application process extremely difficult and frustrating, even for an applicant who simply wants to take a vacation to the U.S., attend a wedding, or visit colleges and universities. It is thus critically important for visa applicants to prepare for their interviews by understanding the nature of the immigrant intent presumption, and by assembling the appropriate documentary evidence in connection with both the classification they are seeking as well as the required intent.

The attorneys at Landis & Arn are available to answer any questions related to U.S. immigration procedures and laws, including questions regarding the nonimmigrant visa application process for those intending to visit, study, and work in the U.S.