When Immigration Matters

What Does Dual Intent Mean in Regard to Work Visas?

Posted by Karen-Lee Pollak on Mar 13, 2018, 2:30:00 PM

dual intentBefore we get into the intricacies of this immigration concept, let’s first define dual intent. In legal terms, dual intent refers to a type of visa that, while officially temporary in nature, also allows the visa holder to seek permanent residency in the US through a green card. This distinction of dual intent is particularly vital to recognize in non-immigrant (temporary) work visas. Remember that dual intent in regard to work visas refers to both 1) the desire to come and work in the US in a temporary capacity and 2) the long-term desire to immigrate to the US permanently. Simple enough so far? Let’s dig a little bit deeper then.

Non-Labor Dual Intent Visas

Some dual intent visas don’t have anything to do with labor. Indeed, K visas are reserved for fiancee’s, foreign spouses and children of US citizens or children of the fiancée of a US. citizen. V Visas are reserved for spouses and children of permanent residents.  So while these visas offer temporary means for spouses or children to enter the US, the understanding is that they will then apply for a green card or seek full citizenship. These non-work visas with dual intent are then fairly straightforward (at least in theory.)

Work-Related Dual Intent Visas

Though there is a wide array of non-immigrant work visas, not all allow for dual intent. The list that does include dual intent then, looks something like this:

  • H-1B visas for specially qualified employees.
  • L visas for corporate transfers from outside the US.
  • O visas for foreign individuals with extraordinary ability
  • P visas for foreign athletes or entertainers

It’s important to note here that, while each of the above visas allows for a holder to apply for full immigration, it does not guarantee they’ll attain it. So a visa holder still must pass through the stringent requirements of gaining a green card before they can establish permanent residency. And if the holder’s attempt to gain a green card fails, they’re expected to leave the US at the end of their visa term.

Preconceived Intent

As we mentioned above, not all work-related visas fall under the umbrella of dual intent. For example, the following visas do not have allow for dual intent meaning you represent to United States Citizenship and Immigration Service (USCIS) that you will depart the US at the end of your visa term and do not intend to live in the United  States permanently. 

  • B1/B2-Tourist/Business visa
  • J-1 Exchange Program Visa
  • ESTA-visa waiver
  • F1-Student Visa
  • TN Professional visa for citizens of Canada and Mexico
  • E-2 Temporary Investor Visa 

However, a foreigner can apply for permanent residency with a non-immigration, non-dual intent visa. It’s just much more difficult to actually attain it. One of the biggest reasons is the concept of preconceived intent. (I.e. the foreigner had a preconceived plan to immigrate to the US permanently, despite applying for a temporary visa.) In layman’s terms, the USCIS will likely be reticent to grant a green card to an alien who entered the US through a visa without dual intent. At this point, the foreigner will be tasked with proving that, though they originally had no intention of permanently relocating to the US, something significant has occurred during their stay to change their outlook. Again, this is a tricky process to navigate, and in some instances a foreigner may even be charged with visa fraud for misrepresentation. That’s why it’s so essential to know which visa to apply for –– before you apply for it!

Learn More

If you’re unsure about which visa works best for your situation –– or if there’s a legal term or concept confusing you –– don’t hesitate to get in contact the Pollak legal team today. We’re here to help you!

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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.

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