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Dual Intent - Did the Consulate Deny Your Nonimmigrant Visa Because of It?

Many foreign nationals seeking nonimmigrant visas are unclear about the “presumption of immigrant intent” and suffer visa denials because they are unable to prove their temporary intent to remain in the U.S. In this article, we aim to explain you why the majority of nonimmigrant visas are denied, the responsibility of a foreign national seeking a nonimmigrant visa, an introduction to the doctrine of dual intent and a list of nonimmigrant classifications that support the dual intent policy.

Why Most Nonimmigrant Visa Applications Are Denied?

All nonimmigrants coming to the United States are presumed to have immigrant intent, that is, the U.S. Consulate abroad assumes that the applicant wants to live in the U.S. permanently. Most nonimmigrant visa applications are denied because the nonimmigrant visa applicant is unable to prove that they only have the intent temporarily and that they have the intent to return to their home country. The applicant is unable to show significant family or employment related ties to his or her country of origin to the satisfaction of the consular officer. For example, the applicant’s entire family lives in the U.S. or the consular officer becomes aware that there is a pending immigrant petition for the applicant.

A foreign national who seeks to enter the U.S. as nonimmigrant in most visa classifications is responsible to prove that his or her intent to prove that his or her intent to come to the U.S. is purely temporary and that they have the intent to return to their country of origin. In other words, foreign nationals entering in most nonimmigrant visa categories should not have the intent to remain permanently in the United States.
The Doctrine of “Dual Intent – What Does the Policy Hold?

Under most circumstances, a foreign national who wishes to come to the U.S. as a nonimmigrant:
1. needs to maintain a residence abroad which he or she has no intention of abandoning;
2. and is assumed to be an intending immigrant unless the contrary is established.
  
  NOTE: Filing of an Immigrant Visa Petition or an Adjustment of Status application indicates a desire on the part of the applicant to obtain permanentresident status in the U.S.
  
  However, there are several nonimmigrant visa categories where the preceding is not required. The doctrine of dual intent dictates that you can enter and remain in the U.S. lawfully as a nonimmigrant while at the same time not actually maintaining a foreign residence and/or having an immigrant intent.
Nonimmigrant Visa Categories That Support Dual Intent:

The following are the nonimmigrant visa categories that support the doctrine of dual intent:
1. H and L Visa Categories: The H-1B & L visa categories are the only employment based non-immigrant visa categories where the dual intent doctrine is recognized statutorily. Current regulations recognize that the filing of an application for or approval of a labor certification or an Immigrant Visa petition or the filing of an Adjustment of Status application shall not be a basis for denying H-1 or L-1 petitions which includes requests for extension of stay or change of status to H-1 or L-1 classification.
  
  NOTE: While dual intent doctrine is recognized for H-1B visa classification, similar exemptions are not available to foreign nationals in or seeking H1B1, H-2A, H-2B, H-3 or TN visa classifications.
2. O Visas: Dual intent appears to be recognized for O-1 visa holders. While not statutorily recognized like the H-1 or L, O-1 visa applicants are not required to maintain a residence abroad. Regulations provide that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the foreign national’s application for admission, change of status, or extension of stay in O-1 classification.
  
  While an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon, there must however be a temporary intent to remain on the part of the O-1 visa holder. The foreign national may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
  
  NOTE: The dual intent provision, however, does not apply to O-2 visa applicants. Unlike O-1 nonimmigrants, the O-2 visa applicants must satisfy that he or she has a residence abroad and no intent to abandon that residence.
3. P Visas: The Immigration and Nationality Act requires that P visa applicants must have a foreign residence which he or she has no intention of abandoning. However, the regulations also provide that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P petition, a request to extend such a petition, or the alien's admission, change of status, or extension of stay.
  
  Thus, the alien may legitimately come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
  
  NOTE: The dual intent provision, however, does not apply to essential support personnel.
4. E Visas: A limited form of dual intent has been recognized for the E visa classification. Regulations provide that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.
  
  However, foreign nationals in E visa classification are required to maintain an intention to depart the United States upon the expiration or termination of their E-1 or E-2 status. The foreign national is required to satisfy that his or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of the legality of their status.

Conclusion: Foreign nationals seeking nonimmigrant visa classifications that do not permit dual intent, including but not limited to B-1/B-2, F-1/F-2, H-3 and H-2B, must generally demonstrate that they intend to remain only temporarily in the U.S. and will return to their home country.

Any clear indication that the foreign national desires or intends to remain permanently in the United States will prevent him or her from obtaining a visa, gaining admission, obtaining an extension or change of status. Foreign nationals seeking a nonimmigrant visa buy also have an intention to pursue permanent residence in the U.S. must consider the limited exemptions given to certain nonimmigrant visa classifications under the dual intent doctrine and consult an experienced immigration attorney on the suitable options available to them to make informed decisions and ensure that their chances of obtaining a visa or extension of stay or change of status are not adversely affected.

If you have been denied a nonimmigrant visa under the Doctrine of Dual Intent policy, we suggest you to consult a VisaPro immigration attorney. before you apply again for the same or any other nonimmigration visa.

The above article is brought to you by VisaPro.com. VisaPro’s US Immigration Lawyer Services include B-1 Visa, H-1B, L-1, E-2, Adjustment of Status, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys http://consultattorney.visapro.com. Our experienced attorneys will be happy to assist you.

Visit VisaPro regularly for updates and the latest immigration news at:
http://www.visapro.com/Immigration-News/Index.asp

Nonimmigrant Visa Processing at U.S. Embassy, London

Any person who is physically present in the United Kingdom may apply for a visa at the U.S. Embassy in London. The Embassy is located in Central London, and is easily accessible from London’s major railroad stations by taxi, bus, or tube (subway). The Embassy in London is responsible for issuing both nonimmigrant and immigrant visas to residents of the United Kingdom. The Consulate General in Belfast issues only nonimmigrant visas covering visits for tourism, business, work or study, but does not issue Treaty Trader/Investor (E Category) visas or Fiancee (K Category) visas. Further, the Consulate General in Belfast also does not issue immigrant visas. The Consulate General in Edinburgh, Scotland and the Welsh Affairs Office, Cardiff, Wales do not process any type of immigrant or nonimmigrant visas.

Nonimmigrant Visa Processing

The following provides information on visa requirements for travelers to the United States who wish to visit, work or study for a temporary period. The type of visa required will depend on the purpose of your travel. Many travelers seeking to enter the U.S. for business or tourism for less than 90 days will be eligible to travel to the United States visa-free under the Visa Waiver Program.

Personal Interview and Waivers of interview

Due to increased screening processes and biometrics necessitating fingerprinting requirements, most applicants are required to schedule an appointment for an interview with a U.S. consular officer.

You may be granted waiver from the personal interview and be allowed to mail in your visa application if you satisfy the following conditions:

You are under the age of 14; or

You are applying for diplomatic (A-1 & A-2) and International Organization (G-1, G-2, G-3, G-4) or NATO 1, 2, 3, 4, 5, & 6 visas; or

You are an accredited official applying for a C-3 visa; or

You are aged 80 and over and:

•	are U.K. or E.U. passport holder, or have been granted indefinite leave to remain in the United Kingdom from the U.K. government; and

•	are not ineligible to receive a visa; and

•	have not been refused a visa under Section 214(b), or if refused, the refusal has been overcome; and

•	have not been denied entry into or removed from the United States; and

•	were not born in nor do you hold a passport from North Korea, Cuba, Syria, Sudan, Iran or Libya

Scheduling an interview

You may schedule an appointment for an interview by calling the Operator Assisted Visa Information Service on 09055-444-546 Monday through Friday, between 8.00 am and 8.00 pm, and Saturday, between 9.00 am and 4.00 pm. Calls to this line are charged at £1.30/min from BT landlines, but some mobile and network providers may charge more. In addition, callers from outside the United Kingdom and some mobile and network providers cannot access this number. Applicants outside the United Kingdom should have a relative, friend or colleague in the United Kingdom call on their behalf.

In case you have an urgent need of travel, you should identify the nature of the emergency when calling the Live Operator Service.

Family or married couples applying for visas at the same time may schedule one appointment per family or couple. All others must schedule individual appointments. Your child under the age of 14 is not required to appear in person for the interview. You may bring his/her application, passport and other documents along with you, at the time of your interview.

Forms, Fees and supporting documents

All nonimmigrant visa applicants, even children and babies listed in parents' passports, are required to submit the required forms and documents.

Application Forms: All visa applicants must submit Form DS-156, Nonimmigrant visa application. All male applicants aged 16 to 45 must also complete the Form DS-157. This form is also required of any applicant aged 16 or over who was born in or holds a passport from Iran, Iraq, North Korea, Sudan, or Syria.

Passport: A passport or other travel document valid for at least 6 months from your planned date of departure from the U.S. is required. This requirement does not apply to United Kingdom passports. The passport must have at least one blank page.

Photograph: One recent color or black and white photograph taken within the last six months is required of all applicants, including babies. The photograph should be:

•	Taken within the last six months

•	2 inches (50mm) square, with the head centered in the frame. The head (measured from the top of the hair to the bottom of the chin) should measure between 1 & 1 3/8 inches (25mm to 35mm) with the eye level between 1 & 1/8 inch to 1 & 3/8 inches (28mm and 35 mm) from the bottom of the photograph

•	In color, or black and white against a white or off white background. Photographs taken in front of busy, patterned or dark backgrounds are not acceptable

•	Unmounted, full face, with the face covering about 50% of the area of the photograph. In general, the head of the applicant, including both face and hair, should be shown from the crown of the head to the tip of the chin on top and bottom, and from hair-line side-to-side. It is preferable that the ears be exposed

•	Head-coverings are acceptable only when the applicant's face is completely exposed

•	May contain a small (one quarter inch) white border on one side

If the photograph does not meet required standards, you may have to leave the consulate grounds to have a new photograph taken before the visa interview can proceed. You must affix the photograph firmly to the space provided on the DS-156. In case you need to staple the photograph, place the staples on the edge of the photograph, not in the middle of it, as the photograph will appear on the visa.

Visa application fee: Every visa applicant is required to pay a visa application fee of $100.00 or sterling equivalent which currently equates to £60.00. Payment must be made in cash at a bank using the Embassy supplied paying-in slips. The fee cannot be paid at the Embassy. The visa application fee may be paid at any bank in cash. If paid through Barclays Bank, no additional charges apply. Other banks may assess an administrative charge. Each individual must pay a fee even if he or she is traveling with others on the same passport. You should request a paying-in slip when scheduling the appointment for the visa interview.

Processing Time

Routine visa applications take approximately 5 workdays to process. In case you tick yes to any of the boxes under point no. 38 on your DS-156 application form, your visa processing may take considerably longer and you can expect to wait a minimum of 14 to 16 weeks before being advised of the outcome of your application. Box 38 contains questions related to prior convictions, refusals on account of fraud, violations of terms of visa, affliction with communicable diseases etc.

If you are advised at the time of the visa interview that your application will require additional administrative processing, you should allow at least 60 days for this stage of the application to be completed. However, the processing times mentioned above are approximate and cannot be guaranteed. Thus, you should schedule your visa interview much in advance from the date of your intended travel to the U.S.

The Visa Interview

Incomplete forms, lack of documents or failure to pay the visa application fee may result in the cancellation of the appointment. You must ensure that you complete the visa application forms and pay the visa application fee before the scheduled interview and that you bring all supporting documents with you on the day. You must also carry the letter of confirmation of your scheduled appointment for presentation to the security guards at the gate.

You must review all the forms and supporting documentation and be prepared for the questions to be asked by the Consular officer. You should be confident in answering questions related to the purpose of your travel, duration of your visit, your present job and family ties to the United Kingdom etc.

For more assistance

In case you need further assistance in your visa processing, please contact us. We also recommend you to view the following videos containing two mock interview sessions on how to handle interview at the consulate.

Mock Interview 1 (Windows Media File)

Mock Interview 2 (Windows Media File)

Nonimmigrant Visa Officer from US Consulate, Chennai shares views

At a May 27, 2005 IACC seminar in Bangalore, Ms. Carol Cox, Deputy Chief, NIV Section, U.S. Consulate, Chennai, addressed this program and went over some of the issues visa applicants should keep in mind while applying for a visa.

Last Name: Visa applicants should indicate clearly in Forms DS-156 and 157 their Last Name and Given Name. Its often seen in the case of South Indian names that passport issuing authorities write the whole name in the Last Name field. In situations where the whole name is given in the Last Name field, the Consulate writes ‘FNU’ – First Name Unknown – in the Given Name field. FNU may create a problem when a person on an H-1b or L-1 visa applies for a driver’s license in the U.S. as the officer in the U.S. is unable to understand FNU. Applicants should check their passport and if the whole name is given in one line, they should get the same changed before applying for a visa. If applicants change their name in the passport after a visa is issued, they need to pay the visa fee again to get the same changed in the visa.

Dependants: Irrespective of when dependants will travel to the U.S., it’s advisable that the whole family appear together for the visa interview. The benefits of appearing together is that only a single interview appointment is needed and it also helps visa officers decide the validity of the spouse and children when they see the entire family together.

BEP Companies: Applicants from BEP companies don’t get any preference when booking appointments. BEP members are responsible for keeping the Consulate informed about overstays by their employees, any change in the authorized signatory etc.

Interview Tips: Applicants need to explain clearly the purpose of their trip to the U.S. Often applicants give generic or vague answers which don’t mean much as officers look for specific answers. Well rehearsed answers are also a no-no when the applicant doesn’t know what it means and is unable to explain the details to the Officer, if questioned.

L-1 Anti-fraud Fee: The Consulate doesn’t have an answer for the duplicate anti-fraud fee that is paid when the consulate advises L-1 Blanket applicants to file the L-1 petition with the USCIS.

B-1 Portability: A B-1 visa is portable, hence if an applicant gets a B-1 visa while working for one organization he can travel on that visa to the U.S. even when he is no longer working for that organization. Employers may not cancel B-1 visas as they are portable.

On the whole it was a session full of learning as Officer Cox discussed various practical issues faced by companies and visa applicants. The Interview Tips given by Officer Cox constituted a major portion of the discussion as the visa interview is an integral part of the entire visa application process. We at VisaPro appreciate the Chennai Consulate’s views and tips on how applicants should conduct themselves during the interview and recommend our readers to view the following videos where comments made by VisaPro team on how to handle visa interviews align with the tips given by Officer Cox in the IACC seminar.

Mock Interview 1 (Windows Media File)

Mock Interview 2 (Windows Media File)

Applying for Third Country National Visa at Border: What are the Risks Involved?

Stephan, a national of France, graduated from college in the US last year and just completed his OPT. He was offered a position with the engineering firm where he completed his OPT and they secured an H1B visa for him. He knows that he needs to get a new visa in his passport but does not want to travel back to France at this time. He would also like to get the visa before a ski trip he is taking to Chile in July (he does not want to miss any time skiing because he has to deal with visa issues). Can he take a quick trip to Montreal, Canada to get a visa? Let’s see.

Foreign nationals, or Third Country Nationals (TCN), often prefer to travel to Canada or Mexico to apply for nonimmigrant visas because of the obvious convenience. For those who are not familiar, a ‘TCN’ for a consulate in Mexico is a person who is not a citizen of Mexico but of a third country, like India or Australia. Applying for and getting a visa at the ‘border’ posts, those U.S. consulates in Canada and Mexico that are near the U.S. border, is more convenient for a foreign national than having to travel back to their home country; it saves time and money. Sometimes TCN is seeking a visa stamp for a new visa category (in change of status cases) and other times the trip is to obtain a new visa stamp to replace one that has expired in the passport.

Who can be issued a Visa at a Border Post

Foreign nationals who have never been ‘out of status’ in the U.S. and have not overstayed their I-94 are eligible to apply for a visa at a border post. In other words, if you have remained in the U.S. longer than the period authorized by the immigration officer when you entered the U.S., you must apply for a visa in your home country. As of April1 2002, the Border Posts no longer accept visa applications from nationals of the seven countries currently designated as state sponsors of terrorism. Additionally, none of the Border Posts accept applications for E visas from TCNs who are not resident in their consular districts.

How to Apply for a Third Country Visa at a Border Post

To apply for a third country at a Border Post, you must make an appointment for an interview by telephone or by Internet.

Before your appointment is scheduled, you will complete an online application Form DS-160 for the post where you will be applying.When seeking TCN processing, you should be aware that as a TCN you may be more likely to encounter difficulties at the time of interview. Consular officers at Border Posts will deny visas whenever they believe there are fraud indicators present, or their lack of knowledge of local conditions and/or familiarity with documents in the TCN applicant’s home country prevents them from properly adjudicating the case. In such cases the TCN will be advised to apply for their visa in their home country.

Exclusion from Automatic Revalidation of a Visa

In an attempt to enhance border security, and ensure that only foreign nationals eligible to enter the U.S. are allowed entry, effective April 1, 2002, foreign nationals who have applied for and been refused a visa while outside the U.S. are prohibited from returning to the U.S., even if they are in possession of a valid I-94. The previous regulation allowed foreign nationals whose visas had expired but their I-94 remained valid to re-enter the U.S. without obtaining a new visa. This change in the regulations means that in the case where a TCN is denied a visa at a Border Post, the TCN must return to their home country to get a visa before they can re-enter the U.S.

Ok, time to check back on Stephan. Stephan needs to obtain an H1B visa. He changed his status in the US from F1 to H1B. However he is from a relatively low fraud country and will be applying for his visa at a post where French is the second language. His chances of success are relatively good, but he needs to be aware that the consular officer has complete discretion on whether to issue a visa to a TCN. If the consular officer denies his visa application Stephan will have to travel from Canada to France, incurring extra time and expense, to get a visa before he can return to the US.

It is essential for foreign nationals to understand the risks that are now involved in applying for a U.S. visa in Canada or Mexico. If the visa application is approved, there is no problem.
However, if the visa is denied, you cannot return to the U.S. until you have obtained a new visa in your home country! Generally, the most successful visa applications are those from individuals who are applying for a visa in a category for which they have been previously issued a visa, however, the risks have certainly increased in the recent past.

If you have questions about filing for third country national visa at the border, Contact a VisaPro Immigration Attorney. We will be happy to assist you.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/