NAVIGATING DUAL INTENT – HOW TO STEER THE SHIP AND KEEP IT FROM SINKING by Dagmar Butte, Rómulo E. Guevara and Ronald Matten 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association The General Presumption Framework • Every Foreign National Is An Intending Immigrant INA 214(b) • Options – Overcome Presumption – Fall Within An Exception 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Quick Poll • Do you file I-485 for individuals who ARE NOT in an underlying H-1 or L-1 status? – Always – Only if in E, O & P status – Depends on critical issues in the case – Never 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association We Shall Overcome – But How? • Burden on Applicant • Maintain and not intend to abandon “residence” abroad INA §101(a)(15) – Residence = general abode or principal, actual dwelling place irrespective of intent. INA §101(a)(33) – Objective Test – Can be Someone Else’s Home 9 FAM 41.31 n.2. • Must seek favorable exercise of discretion by showing ties to home country 9 FAM 41.31 n.3.4. 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Non-Immigrant Intent vs. Preconceived Intent • Distinct Concepts – General Desire to Remain US is Permitted • Matter of H-R-, 7 I & N Dec. 651 (RC 1958) • Matter of Hosseinpour, 15 I & N Dec.191 (BIA 1975). – Fixed Intent to Remain in US is Prohibited • Lauvik v. INS, 910 F.2d 658, at 660 (9th Cir. 1990) 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Everyone’s a Sinner Except When They’re Not • Exceptions toProhibition on Immigrant Intent – H1 and L1 Visas • INA §214(h) – Often called “Dual Intent” – E, O-1 and P Non-Immigrants Get Limited Dispensation 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association And Some Sinners Always Are • Can Categories that Can Never Have Intent – B 1/B2 – F-1 – J-1 –Q – TN 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association TNs – They May Quack Like Ducks but They Are Not Ducks • Enter “w/o intent to establish permanent residence.” 8 C.F.R §214.6(b) • Stay Must Have Reasonable and Finite End. Id. See also 22 C.F.R. §49.59(c). • No Immediate Intent to Immigrate. 9 FAM 41.59 n5. • I-140 Alone Does Not Establish Intent. LaFleur letter, INS HQ 1815-C (June 18, 1996), reprinted in 73 No. 28 Interpreter Releases 970, 979-80 (Jul 22, 1996). 2008 Paul Morris Letter reconfirms 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association The Sinners Who Get Dispensation • H1 –B and L-1 A and B – May Have Immigrant Intent Despite Temporary Employment. 8 C.F.R.§214.2(h)(16)(i); 8 C.F.R.§214.2(l)(16); FAM 41.53 n3.1 – Immigrant Petition Not Basis for Extension Denial • Not True for H-2A, H-2B and H-3. 8 CFR 214.2(h)(16)(ii) – Intent Irrelevant At Consular Interview. DOS Cable, 91-State-171115, (May 24, 1991), rep 68 No. 21 IR 681-84 (June 3, 1991). 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association H-1 Gotcha • Exemption Does Not Apply to – Chile H-1B1. United States-Chile Free Trade Agreement Implementation Act (Pub.L. No. 10877) – Singapore H-1B1. United States-Singapore Free Trade Agreement Implementation Act (Pub.L. No. 108-78). – These Are Treated Like TN. 9 FAM 41.53 N27.5 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association And Now For The Grey Areas • E-1/E-2/E-3 Visas. 8 C.F.R. §214.2(e)(5); 22 C.F.R. §§41.51(a)-(c); 9 FAM 41.51 n15. – Maintain an intention to depart the United States upon expiration or termination of status – E Visas may not be denied solely on the basis of a labor certification or immigrant visa petition – Need not keep foreign residence. 9 FAM 41.51 n15 – Unequivocal Expression of Intent to Return is Sufficient. 9 FAM 41.51 n15 – E-3 intent same as E-1/E-2. 9 FAM 41.51 n16.6 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association More Grey Areas • O-1–Wow, You’re Special But Not That Special – Similar to E-Visa. 9 FAM 41.55 n5.1. – O-1 Need Not Maintain Residence – O-1 Visas may not be denied solely on the basis of a labor certification immigrant visa petition. 8 C.F.R. §214.2(o)(13); 9 FAM 41.55 N8.2. – O-2 Support Personnel Specifically Prohibits Immigrant Intent. INA §101(a)(15)(O)(ii) 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association And The Grey Continues • P-1Visas – Must Maintain Foreign Residence. INA §101(15)(P). BUT – Labor Certification or Preference Petition Shall not be Basis for denying P Visa 8 C.F.R. §214.2(p)(15); 9 FAM 41.56 n9.2. – May Lawfully Seek LPR Status While in P Status. 8 C.F.R. §214.2(p)(15) – Support Personnel Not Protected 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Adjustment of Status or Will It Come Back to Bite Me Later • Anyone Who Can Adjust Will Want To – Quicker Processing – No Need To Depart – Ability to Continue Working – Often Less Expensive 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Preconceived Intent Not Just Bad But Really, Really Bad • Burden is On Applicant to Show No Preconceived Intent. INA §214(b) • Problem for Anyone in the Prohibited Categories • Can Be A Problem in the Grey Areas • Preconceived Intent Potential Basis for Denial of Adjustment. Von Pervieux v. INS, 572 F.2d 114, 118 (3d Cir. 1978) 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association 30/60 Days – Count Carefully • Actions Evaluated Depending on Proximity to Entry. 9 FAM 40.63 n4 • DOS applies through FAM But Used By USCIS – 30 Days – Intent Likely to Be Found – 31 to 60 Days – Rebuttable Presumption of Intent – 61-90 Days – No Presumption – Controversial 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Additional Considerations • Well Documented Changed Circumstances Can Rebut Presumption • Remember to Distinguish Between – Long Term Desire = OK – Present or Immediate Intent = Not OK • Watch Out for “Rapid Sequence of Events” Matter of Patel, 19 I&N Dec. 774 (BIA 1988) citing Matter of Lasike, 17 I & N Dec. 445, 446-48 (1980); Matter of Ro, 16 I & N Dec. 93 (1977) 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association Questions? 2010 AILA Teleconference/Web Conference © 2010 American Immigration Lawyers Association
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