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Understanding

Understanding immigrant intent

A U.S. immigration officer presumes that all persons travelling to the U.S. have “immigrant intent.” Immigrant intent means the person has the intention to stay permanently in the U.S.. If you are traveling to the U.S. on a temporary visa, you are required to prove that you do not plan to remain in the U.S. But the concept of immigrant intent also presents challenges for those who hope to adjust status to permanent resident within the U.S.

Visa applications – immigrant intent at the U.S. consulate

If you are applying for a temporary visa, such as a tourist visa (B-2), you will first encounter the issue of immigrant intent at the U.S. consulate. The consular officer performing your visa interview will make an assessment of whether she believes you plan to overstay a temporary visa and try to remain in the U.S.
The core question that the consular officer asks herself is whether the applicant demonstrates that he will maintain residence in a foreign country. Roughly speaking, residence refers to the place where a person intends to live indefinitely. The officer looks at a number of factors to determine whether the applicant has a residence abroad. These factors include:

  • Permanent employment;
  • Meaningful business or financial connections;
  • Close family ties; and
  • Ties to social or cultural associations, which show a strong incentive to return to the country of origin.

Owning a home in the foreign country is generally strong evidence of having a residence there.

Even after getting your temporary visa, however, you are not done with the issue of immigrant intent. A visa is only permission to “apply for entry” to the United States. That means that Customs and Border Protection (CBP) is not required to admit you to the U.S. just because you have a valid visa. Instead, CBP will make its own determination about whether you are admissible, including on the issue of immigrant intent.

Entering the U.S. – immigrant intent at the port of entry.

Let’s say that you’ve been issued your visa. Now you fly to the U.S., or seek to enter at a land crossing or sea port. Now you will be interviewed by a CBP officer, who will make another determination of whether you have immigrant intent.
CBP will consider similar factors to the consular officer in assessing immigrant intent. One big difference, however, is that CBP will usually make its determination based only on the officer’s conversation with you, along with their immigration records. In other words, unlike the consulate, CBP will not be reviewing the mountain of evidence you might have submitted with your visa application.

It is important to understand that CBP’s determination on immigrant intent is essentially final. If the officer believes that you plan to overstay your visa, it will be very difficult to overturn this finding. There is no right to have an attorney present at the port of entry, and CBP is not required to speak to your lawyer if they choose not to.

It is critically important, however that you be completely honest with the CBP officer. At most ports of entry, if you are denied entry based on perceived immigrant intent you will simply be allowed to return to your country. But if the officer believes you are lying to her, you can be placed into expedited removal (i.e., deportation) proceedings. This carries heavy implications for your future travel to the U.S.

What if I’m planning to seek residence in the United States?

If you are planning to become a U.S. lawful permanent resident (LPR) it is still possible to travel to the United States on a temporary visa. But it becomes potentially much more difficult.

Let’s say that your spouse is planning to file an I-130 petition for you, to begin the process of gaining LPR status for you. Or let’s say that the I-130 petition has already been filed. In either event the U.S. consulate is still permitted to issue you a visa. Likewise, CBP is permitted to allow you to enter, even if you have a pending I-130.

But they have a reason to look very careful at the issue of immigrant intent.

Why? Because by filing an I-130 petition – or planning to do so – demonstrates your intention to seek residency in the U.S. So on the one hand, you’re starting the process of seeking residency, and on the other hand you’re telling the immigration officer that you don’t plan to immigrate… at least not yet.

Broadly speaking there are two main considerations in these types of cases. The first issue is what country the individual is coming from. Countries like Canada, Germany and Japan have very low rates of visa fraud. In other words, the immigration officials are generally less worried about citizens of those country violating visa rules. We have had many Canadian and Japanese clients travel back and forth to the U.S. with pending I-130s.

By contrast, countries like China, India, the Philippines and Mexico have relatively higher rates of visa violators. Other factors being equal, it is far more difficult for an Indian national to overcome the presumption of immigrant intent than for a Canadian.

The second consideration is the strength of personal ties to the foreign country, looking at the factors listed above. Broadly speaking – and this is just a rule of thumb – the person should be able to demonstrate steady employment in the foreign country. If the person is unemployed, and if she doesn’t own a home, it can be very difficult to demonstrate lack of immigrant intent.

Adjustment of status applications (I-485) and immigrant intent.

It is relatively common for foreign nationals to enter the U.S. on a temporary visa and later seek adjustment of status by filing a Form I-485. This is yet another situation can pose a serious stumbling block.

What is the issue? Remember that the whole concept of immigrant intent was showing that you didn’t plan to seek residence in the U.S. But an adjustment of status application is exactly that – an application for U.S. residency. So after telling the consular officer and/or CBP that you did not plan to become a residence, you’ve then gone and filed an application for residence.

In reviewing your adjustment of status application, U.S. Citizenship and Immigration Services (USCIS) will assess whether you have ever lied to a U.S. immigration agency. If they conclude that you have lied, then you can be subjected to a permanent ban from the U.S. This means that your adjustment of status would be denied and you would be permanently prohibited from coming to the U.S. for any reason. There are special pardons, called waivers, that you might be able to apply for, but these are very difficult and costly to obtain.

Ultimately the determination by USCIS about immigrant intent depends on a full assessment of your case. But there is one rule-of-thumb that they look to first: the 30/60 day rule.

The 30/60 day rule.

The 30/60 day rule applies when someone enters the U.S. on a temporary status, then seeks residency. It gives guidelines to the agencies based on how soon you apply for adjustment of status following your entry to the U.S.
The 30/60 day rule is technically a Department of State guideline, meaning that it applies only to visa determinations by consular officers. But USCIS tends to look to the rule as a guideline.

Applications within 30 days of entry.

Under the 30/60 day rule, if you file an adjustment of status applications within 30 days of entering the U.S. the agencies will treat this as fraud. In other words, they will assume that you had intended to seek residence all along, and lied when entering the U.S. on a temporary status. For this reason you should almost never file an adjustment of status application within 30 days of entering the U.S. on a temporary status.

Applications 31-60 days after entry.

If you were to apply for adjustment of status after the first 30 days but within your first 60 days, the immigration agency will not automatically presume that you committed fraud. Instead, they will look at all facts of your case to determine if you had a preconceived intent to seek residency when you entered the U.S. You are permitted to submit evidence with your application that shows you had not planned to seek residence when entering the U.S.

Applications after 60 days.

If you apply for adjustment of status 60 days or longer after the date of entry then the timing of your application – by itself – does not raise a concern about immigrant intent. Some people mistakenly believe that they simply don’t have to worry about immigrant intent and fraud concerns if they wait 60 days before filing an I-485. But that is inaccurate. The USCIS officer will still consider all the facts of your case in reviewing your adjustment of status application. That includes a full assessment of whether you have ever committed an act of immigration fraud. So if there are facts in your file, or raised at your interview, that show misrepresentation, then the permanent bar could be applied against you.

The critical question: when did you decide to become a resident?

We often advise clients that the issue partially boils down to this: when did you make the decision to become a lawful permanent resident (LPR)?

If you are outside the United States, and you’re considering becoming a resident, then you almost certainly should not seek adjustment of status. Why? Because in order to enter the United States you would need to misrepresent your intentions. While you know that you plan to seek residency, you would have to tell the immigration agencies that you plan to return home. That is committing an act of fraud and could lead to being permanently barred from the United States. Instead, if you are outside the United States, seeking to become a residence, you will usually want to pursue an “immigrant visa” through the Department of State.

If you are already in the U.S., considering becoming a resident, then you might be eligible to seek adjustment of status. The prime example of these cases is where there was a change in circumstances after the individual enters the U.S. For example, we have clients where the U.S. citizen proposed marriage after the foreign national entered the United States. In those circumstances our foreign client had not planned to immigrate, since she wasn’t even planning on marriage until the U.S. citizen proposed. Likewise, we have clients who met after entering the U.S. – that can also be a circumstance where adjustment is possible.

Conclusion.

The concept of immigrant intent is very important in U.S. immigration law. Those seeking to enter the U.S. on a temporary status must be prepared to show their ties to a foreign country. And if you are considering applying for adjustment of status you assess whether USCIS will be concerned that you have committed fraud. For a case-specific assessment, feel free to schedule a consultation with us. We work with clients in all 50 states and across the globe.

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Sound Immigration

All Sound Immigration attorneys are members of the American Immigration Lawyers Associations. They practice immigration law exclusively, focusing on helping families start new lives in the United States.

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