There are two main visa categories: immigrant visas and nonimmigrant visas. The type of visa that is sought will depend on the purpose of the travel.

Immigrant visas are issued to foreign nationals who come to take up permanent residence in the U.S. These individuals intend to live and work in the U.S. permanently.

Nonimmigrant visas are issued to foreign nationals who seek admission to the U.S. for a temporary stay and for a specific purpose.  This is where the concept of “immigrant intent” plays an important role. There is a presumption that all individuals seeking admission to the U.S. have immigrant intent. Immigrant intent is the intention to remain in the U.S. permanently. Applicants must rebut this presumption by demonstrating they have a residence in a foreign country which they have no intention of abandoning.  Some factors that consular officers consider when determining whether an applicant has immigrant intent are family ties, employment ties, financial ties, property ties, and social/cultural ties in the home country.

An example of nonimmigrant visas are F-1 student visas. Consider this scenario: A foreign national was admitted to the U.S. on an F-1 visa. While still on F-1, the foreign national finds an employer to sponsor him/her for an immigrant visa. This can raise immigrant intent issues if the foreign national departs the U.S. and then tries to seek admission to the U.S. again as a student.

However, there are some nonimmigrant visas where immigrant intent does not apply. These nonimmigrant visas allow for “dual intent.” The dual intent doctrine says that an individual can be present in the U.S. temporarily AND have the intention to immigrate permanently in the future.  An example of a dual intent visa is the H-1B visa. An H-1B visa holder maintains temporary nonimmigrant status in the U.S. but can pursue the process toward permanent residence status.

By: Camille Joson

Camille is an associate attorney at Reddy & Neumann in the Labor/PERM Department.