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American Dual Intent Visas

Transcript of the above video:

Today, we're going to talk about Dual Intent Visas mostly because I just feel like doing this kind of interesting topic to me. I'm sure it's incredibly boring to somebody who's not been around U.S. immigration matters over the years. But Dual Intent Visas are rather interesting because they straddle the line oftentimes between non-immigrant and immigrant visas.

What are we talking about with respect to Dual Intent Visas? Well first of all, what are we talking about with respect to dual intent? In previous videos on this channel, we've discussed section 214-B of the Immigration Nationality Act and the analysis that consular officers had to undertake when analyzing a visa application and specific to undertaking an analysis where they try to decide "Is the individual applying for the visa, do they have strong ties in their home country and weak ties in the United States?" Basically, what they're trying to ascertain is whether or not the individual in question is a threat or just remaining in the United States after they get their non-immigrant visa. Because a non-immigrant visa is by definition, non-immigrant. It is specifically meant for those who do not have what is called immigrant intent. If it is determined there is some level of immigrant intent involved or inherent to an individual applying for non-immigrant visa, there's a very, very high probability that that individual is going to be denied for that visa.

Cut to the other side of the equation, immigrant intent. One files for something like a CR-1 or IR-1, that's the spouse of a United States citizen who's looking to move to the United States to simply live there, again someone got a green card status in the United States, that immigrant intent you have to show that it's not so much an affirmative burden of proof but one has to have the true intention of moving to the United States with the intention of residing therein. That is the intended place of residence needs to be the United States of America.

So again, we've got two competing things here, two different sort of intentions going on. Dual intent visas straddle this one. A K-1 visa is a very good example of a dual intent visa although it's a little bit straightforward than some of the other one. I'm going into that at the end of this video. The K-1, we more often deal with family-based immigration out of our office so the K-1 is something not only I'm familiar with but also something to deal with more frequently than certain employment-based visas that have dual intent. But the same analogies tend to apply.

With respect to the K-1, it's a 90-day non-immigrant visa but if the individual in question fulfills her requirements i.e., marriage to their American citizen counterpart and filing for what's called adjustment of status or lawful permanent residence in the United States, so long as those requirements are fulfilled, those prerequisites are fulfilled, the individual in question can go ahead and adjust status over into green card status. Now the difference between this type of visa maybe some of the employment-based ones, is the K-1 is for all intents and purposes really treated like an immigrant visa. It's treated, in fact, almost identically to an immigrant visa as opposed to say, the O-1 visa or the L-1 visa, H1-B visa to some extent. These type of visas allow for dual intent so they're strictly speaking non-immigrant visas but if certain requirements notably enough period of time has gone by that one has maintained that status in the United States, one could make the application for a change of status over the green card status. And that is perfectly acceptable and having those two intentions in one's brain at the time one applies for one of those visas is not in and of itself going to result in a denial based on something you like CAN-2 or exactly is Section 214(B) of the Immigration Nationality Act.  

One can have the intention on say something like an O-1 visa let's say an actor is going to the United States or touring the United States, I meet the O-1 requirements for exceptional mobility and I'm going to the United States on an O-1 status but at the back of my mind, "Yeah, I might want to fully live in the U.S.A. and maybe get a green card or maybe a naturalized U.S. citizenship. These are perfectly acceptable intentions to have with respect to a dual intent visa.

Dual intent does not apply to every visa category so I strongly recommend that one not just take this video and think of it as the end all, be all on issue of intentions with respect to visa. Hiring or retaining the services of a legal professional with whom one is most comfortable, with whom is going to be the most conveniently placed for an individual, the best thing to do with these issues. But it is something kind of interesting to think about that there are sort of one type of visa, another type of visa, non-immigrant, immigrant, now there's this hybrid type of visas that are in the middle.