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The Immigration Corner: Nonimmigrant Intent and Conduct Inconsistent with Status – Part 1

Two terms that commonly get thrown around with regard to U.S. visas are Nonimmigrant Intent and Conduct Inconsistent with Status. This is particularly true if you have ever attended an interview at a U.S. Embassy or Consulate or if you have been taken to secondary processing when entering the U.S. Both apply to visas issued by U.S. Department of State (DOS) and status granted by U.S. Citizenship and Immigration Services (USCIS). Each can lead to the revocation of any visa issued by DOS or status granted by USCIS. It is important to understand these two terms and their effects on your plans in the U.S. so that you can avoid the dreaded revocation of your visa. A visa revocation can have repercussions for many years after the fact and could become a barrier to future U.S. entries and visas. This article is part one of a two-part series and will focus on Nonimmigrant Intent.

In order for any nonimmigrant, that is a person coming to the U.S. for a temporary period of time, to obtain a visa to enter the U.S., the nonimmigrant must have Nonimmigrant Intent. Similarly, when attempting to enter the U.S. at a U.S. entry point with that visa, the nonimmigrant must establish his or her Nonimmigrant Intent to the U.S. Customs and Border Protection agent.

What is Nonimmigrant Intent?

Nonimmigrant Intent is the requirement of only entering the U.S. for a temporary period of time and with the intention of returning to your home country at the conclusion of your stay. With Nonimmigrant Intent, you do not have the intention to seek lawful permanent residence (a green card) and doing so eliminates your Nonimmigrant Intent. The way both DOS (applies when applying for a visa) and USCIS (applies when seeking to change status within the U.S.) determine Nonimmigrant Intent is through the residence abroad requirement, as well as a review of the evidence submitted to ensure that it establishes that you will leave the U.S. at the conclusion of your stay.

Residence Abroad Requirement

The residence abroad requirement means that you must maintain your foreign residence abroad prior to and throughout your entire stay in the U.S. without any intention of abandoning it. Your residence can be a place that you own, a place that you lease or it can be a place that someone else owns or leases and it is where you generally stay. For immigration purposes, maintaining a foreign residence goes beyond simply having an actual residence in your foreign country. You must also establish strong ties to your home country. Having strong ties to your home country is viewed as evidence that you will likely return to your home country after the conclusion of your stay in the U.S. There are several factors that, when weighed together, can establish strong ties to a particular country. USCIS and DOS will generally examine the following:

  • Any employment in the home country (including the permanency of the employment);
  • Any meaningful business connections to the home country;
  • Any meaningful financial connections to the home country;
  • Close family ties in the home country; and
  • Any social or cultural associations in the home country.

For employment ties, USCIS and DOS are looking for permanent employment. With regards to business connections and financial connections, there is no bright-line rule as to what is considered meaningful, but a general guide to go by is if the connections would normally require the individual to return to the country, it is most likely meaningful. For close family ties, this tends to be difficult to establish and simply having family in your home country is not enough. In conducting their analysis, USCIS and DOS will determine whether the ties to the home country are enough to induce the nonimmigrant to return home after his or her stay in the U.S.

The residence abroad requirement only applies to the following visa/status categories: B, F, H (except H1), J, M, O2, P and Q. While all nonimmigrant visa categories require the intention to return home after completing the stay in the U.S., the requirement to maintain a residence and strong ties is only for the previously mentioned visa/status categories.

Why is Nonimmigrant Intent important?

First, in order to receive any nonimmigrant visa or change to a nonimmigrant status, you must have Nonimmigrant Intent otherwise the visa application or the change of status request will be denied. Second, and more importantly, not maintaining your Nonimmigrant Intent after entering the U.S. could lead to the revocation of your status and/or the revocation of your visa. Either of these two outcomes can create severe repercussions, including the possibility of being unable to obtain a nonimmigrant visa in the future and effectively “barred” from the U.S. for a period of time. Third, once Nonimmigrant Intent is lost, e.g. in applying for lawful permanent residence (a green card), it will be very difficult to be able to establish Nonimmigrant Intent in the future, should you not obtain a green card.

Therefore, it is important to consult with an immigration attorney before applying for any immigration benefit to understand the risks associated with such applications and to make sure Nonimmigrant Intent is not disrupted where it is required. An experienced immigration attorney can help navigate the tricky waters surrounding Nonimmigrant Intent and help guide you to the right course of action at the appropriate time. Be sure to contact us today to speak with an experienced immigration attorney.

Attorney Paul Messina focuses his practice on all aspects of employment-based, investor-based and family-based immigration law. He has extensive experience in proceedings before United States Citizenship and Immigration Services (USCIS) and the Consular Section of the United States Department of State. He has handled a variety of immigration cases, including employment-based green cards, EB-5 investment-based green cards (direct and through regional centers), and many of the non-immigrant visa/status categories as well as family-based green cards.

Author’s note: The Immigration Corner presents current and relevant topics in immigration law. The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Regulations and laws may vary depending on your location. Consult with a licensed attorney in your area if you wish to obtain legal advice and/or counsel for a particular legal issue.