Overcoming the Reasons for Denial of Temporary Visas -- November 16, 2008

            Josefa is a beneficiary of an immigrant petition filed by his father who is a Filipino World War II veteran. The petition was filed in 1993 after his father naturalized to become a US citizen. Josefa applied for nonimmigrant B2 visa last year. She mentioned that she will visit her father but did not submit enough proof of ties in the Philippines. Her application was denied. Last month, Josefa received news that his father was hospitalized and was very ill. She applied again for B2 visa and again was denied because of her intending immigrant intent. Josefa was distraught but could not do much. His father passed away and her petition for immigrant visa was automatically revoked.

            Most often the question that is raised by applicants for nonimmigrant visas especially for tourist visa applicants is whether or not an existing petition by a US citizen relative on their behalf is a bar to the issuance of their nonimmigrant/B2 visa. Why is it that most applications for visitors visas by beneficiaries of immigrant petitions are denied?

The doctrine of immigrant intent is used in the adjudication of the applications for most nonimmigrant visas including the visitor’s visa.

There is a general legal presumption that every foreign national is an intending immigrant until he or she establishes to the satisfaction of the consular officer that he or she is eligible for the visa being applied for.  Overcoming this presumption in all applications for nonimmigrant visa is the key to obtaining the nonimmigrant visa.

While the approval of the visa applications may be discretionary on the part of the consular officer, there are objective standards that the consular officers are examining in determining whether dual intent is overcomed. The following factors may be considered: (1) whether the applicant has a residence in his/her country of nationality which he intends to maintain; (2)adequacy of evidence of intention to return; (3)permanency of employment in home country; (4) financial ability to return to home country after temporary trip to the US.

Aside from the visitors (B2) visa, the other nonimmigrant visa subject to the presumption of dual intent are the student visas (F1), the exchange visitors (J1) and the cultural exchange visitors visas (Q).

It is recognized that for most Filipino students and by nature of their stage in life may not have the same strong evidence of their ties to the home country.  The Department of State states that the scope of inquiry for student applicants is their immediate intent rather than ties to the home country.

The dual intent doctrine applies strictly to foreign students and exchange students. If there is a permanent resident visa petition that is filed for the student, the supporting evidence must show that there is no pre-conceived intent to remain permanently in the United States when entering as a student and after the student program ends. This may be difficult to prove. Also, many student visa applications are denied especially as there is a presumption of an intending immigrant when an immigrant visa petition is filed on their behalf. The specific intention of the applicant student must be very clear.

If a US employer is interested in hiring the foreign student after the student program and files for an employment based immigrant petition, it is unlikely that a subsequent F1 visa extension will be granted. In fact, there is risk of traveling abroad and seeking re-admission if it is discovered that an immigrant visa was filed by the US employer. Strategic approach must be explored for student visa holders to avoid subsequent denials or problems at the port of entry.

Professional working visas (H1Bs) and intra company transferee visas (L1) are exempted from the presumption of immigration intent pursuant to Section 214(h) of the Immigration and Nationality Act. This means that the H1B or L1 visa holders may hold their temporary visa classification while simultaneously pursuing permanent status in the United States.

Since these categories are exempt, the US employer may initiate petitions for immigrant worker visas for these H1 and L1 visa holders without jeopardizing their status and future extensions of their visas.

In the illustrated case of Josefa above, it appears that she failed to overcome the presumption of intending immigrant or the dual intent. This resulted in the denial of her application for visitor’s visa. Unfortunate denials of nonimmigrant visas may be avoided only as soon as the legal presumption of dual intent is overcome.

Determining intent of the applicant is both subjective and objective. The relevant case law does not prohibit a person from wishing to live in the United States at some future time. The prohibition is that the person holds the preconceived (fixed) intent to live permanently in the US while applying for the temporary nonimmigrant visa.

Those who are beneficiaries of immigrant petitions are not per se prohibited from receiving B2 visas and other temporary visas mentioned above. The existence of the petition may just be one indication of a “wish” to live in the US should the opportunity present itself. Objective evidence of the temporary nature of the trip must be presented to overcome the adverse effect of the existence of immigrant petitions. Remember, wishes are not prohibited only fixed intentions.