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Why Your Intent Must Match Your Visa

Posted by attorney Eric Ludin

One of the primary issues a US Citizenship and Immigration officer considers when deciding whether to issue a visa is whether the applicant’s intent matches the intent of the visa. For example, the officer will not issue a vacation visa if it is the applicant’s intent to immigrate. In fact, if an applicant enters the US on a visa for a different purpose than the type of visa the trip envisions, the applicant could be subject to removal and later barred from re-entry for lengthy periods of time.

I was once asked by a US citizen living in Central America, whether her non-US citizen husband would have an easier time applying for a B2 vacation visa because of his marriage to a US citizen. The reality is that his marriage would actually make it difficult, if not impossible, to get a vacation visa. In order to get the B2 visa the applicant would need to prove that it is their intent to go to the US and return within 6 months after enjoying a vacation. However, the officer would likely find that the applicant lacks credibility. The officer might assume that the non-US citizen would want to overstay the visa and live in the US because of his spouses’ citizenship and connections with the country.

Ironically, this non-US citizen would have little difficulty applying for a green card and permanently immigrating to the US because of the spouse’s citizenship. On the one hand, he could go to the US to live permanently on a green card. But, on the other hand, he would be denied a temporary vacation visa for fear that he might not leave the US. The decision lies solely with the intent of the applicant and the purpose of the visa the applicant is seeking.

Some visas allow dual intent. For example, a person entering on an H1B visa can later adjust their status to an EB2 or EB3 employer sponsored green card. In this example, the individual entered the US with a non-immigrant visa. However, they later immigrated and can honestly admit that they had hoped to immigrate when they entered the country in the first place. This is referred to as “dual intent".

A person entering the US on a non-immigrant visa can change or adjust their status. However, that person will need to establish that they entered the country with the honest intent of being in the US for the purpose the visa was intended unless their visa allows for dual intent. One should not enter the US on a vacation visa with the intent of getting married and applying for a green card. However, they can enter the US for vacation and, while here, decide to attend school and change their status to a student visa.

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