There are limited ways in which a foreign national can enter the U.S.
Foreigners who come legally to the U.S. must have been prescreened by a consular officer and have obtained a visa that gives them permission to enter the U.S.
Broadly speaking, there are categories of U.S. visas:
Refugees and immigrants enter with the intention of remaining permanently in the U.S.
This is called “immigrant intent”.
In contrast, most nonimmigrants are coming to the U.S. for a temporary purpose.
Categories of nonimmigrant visas:
- A (diplomatic visa);
- B-1 (business visa);
- B-2 (tourist visa);
- F-1 (student visa);
- G (international organization visa);
- J-1 (exchange program visa);
- M-1 (vocational student visa);
- K (fiancé(e)s of U.S. citizens);
- E (treaty trader or investor visa);
- H (temporary workers: H-1B, H-2A and H-2B, H-3);
- I (foreign media visa);
- L (intracompany transferee visa);
- O (extraordinary abilities visa);
- P (athletes and entertainers visa);
- Q (cultural exchange visa);
- R (religious worker visa);
- TN (visa for nationals of Canada and Mexico);
- S (law enforcement-related visa);
- T (law enforcement-related visa);
- U (law enforcement-related visa).
One of the most important U.S. immigration law presumption is that all persons coming to the U.S.—even on nonimmigrant visas—are intending immigrants and wish to remain permanently.
This presumption places a heavy burden on the visa applicant to convince the consular officer that he or she will depart the U.S. after their nonimmigrant status will expire.
Regardless of the category of visa, the length of time a person may remain in the U.S. will be governed by the permission given when admitted by a U.S. Department of Homeland Security (DHS) official upon inspection at the port of entry.
The majority of nonimmigrant visas allow the applicant to come to the United States with immediate family under the same visa.
Whether applying at a U.S. Embassy or Consulate or requesting a change of status with USCIS, any nonimmigrant status applicant must demonstrate an intent to depart the U.S. when their status expires.
In order to qualify for a nonimmigrant visa, an applicant must overcome the presumption of immigrant intent.
The issue of dual intent most commonly comes up when nonimmigrant visa holders are trying to apply for permanent residency in the U.S.
This process is known as “Adjustment of Status”.
The notion that a person simultaneously could have the intent to remain temporarily in the U.S. and a future intent to be a lawful permanent resident is known as a “dual intent”.
The dual intent means that some nonimmigrant (temporary) visa holders’ desire to become a permanent resident in the future by itself should not disqualify the person from being admitted to the U.S. or cause a visa extension to be denied.
The dual intent visas are:
- K (Fiancé(e)s of U.S. citizens);
- H-1 (temporary workers);
- L (intracompany transferees);
- E (treaty countries);
- V (family reunification).
All other nonimmigrant visa categories (B-1/B-2, F-1, J-1, etc.) are non-dual intent visas.
Whether a visa is considered a dual intent or non-dual intent will impact the Adjustment of Status process.
- If you’re a dual intent visa holder, you can apply for Adjustment of Status anytime;
- If you’re a non-dual intent visa holder, you can apply for Adjustment of Status only 90 days after your most recent entry to the U.S.
The “adjustment of status” allows a person to obtain permanent residency without having to go overseas to apply for an immigrant visa.
To qualify for adjustment, the applicant must:
- Have been inspected and admitted or “paroled,”
- Be in lawful status,
- Have not worked illegally in the U.S.
Unauthorized employment bar is inapplicable to:
- Immediate relatives of U.S. citizens;
- Applicants seeking permanent residency under the employment based category where the applicant did not work without authorization for more than 180 days.
You can learn more about the 90-Day Rule in this article.