Eligibility for a nonimmigrant visa, such as the O-1 “extraordinary ability” visa, requires proof that the applicant (a) is not an intending immigrant, (b) has an unabandoned foreign residence, and/or (c) is coming to the U.S. temporarily. We discuss the topic of what is broadly referred to as “nonimmigrant intent”.
Understanding the requirements is important for nonimmigrant visa applicants. That understanding must precede formation of a strategy for the consular application, such as how to fill the Form DS-160, Nonimmigrant Visa Application, how to answer the consular officer’s questions, and what supporting documents to submit. The strategy needs to be tailored to the individual applicant’s situation. Proving nonimmigrant intent will be different for a student from a wealthy family going to boarding school, a rock musician going on tour, and an executive attending business meetings. There is no “magic list” of documents (for example, bank statements, evidence of employment, etc.) or incantations (for example, “I need to return to France to continue my job and care for my aging parents”) that can prove nonimmigrant intent.
Nonimmigrant Intent Requirements for Common Nonimmigrant Visa Classifications
| Visa Symbol and Description | (a) Must prove he or she is not an intending immigrant? | (b) Applicant must have unabandoned foreign residence? | (c) Applicant must be coming to U.S. temporarily? | Notes |
|---|---|---|---|---|
| B (visitor for business or pleasure) | Y | Y | Y | |
| E-1 (treaty trader, spouse, or child) | Y | N | N | |
| F-1 (student) | Y | Y | Y | An F-2 must intend to leave the U.S. upon the termination of the F-1’s status. 22 C.F.R. § 41.61(b)(3). |
| H-1B (alien in a special occupation) | N | N | Y | The presumption of immigrant intent does apply to entrants under the U.S.-Singapore and U.S.-Chile Free Trade Agreements. INA § 214(b). |
| H-2 (temporary worker performing agricultural services or other services); H-3 (Trainee) | Y | Y | Y | |
| J (exchange visitor) | Y | Y | Y | |
| L-1 (Intracompany transferee) | N | N | Y | |
| O-1 (Alien with extraordinary ability) | Y | N | Y | |
| O-2 (accompanying alien) | Y | Y | Y | |
| P (athlete; certain artists & entertainers) | Y | Y | Y | |
| R-1 (Alien in a religious occupation) | Y | N | Y | An R-1 must “seek to enter the United States for a period not to exceed 5 years.” INA § 101(a)(15)(R). |
| TN (NAFTA professional) | Y | N | Y | |
| Note: a spouse or child applying for a derivative visa (e.g., F-2, H-4, O-3, L-2) to accompany or follow to join the principal has the same nonimmigrant intent requirements as the principal. 9 FAM § 41.11 NN 4.3, 5.1. |
<The Burden of Proof>
The Immigration and Nationality Act provides for both immigrant and nonimmigrant visas. Immigrant visas (i.e., permanent resident status or “green card” status) allow for indefinite residence in the United States. In contrast, nonimmigrant visas allow entry only for a limited period an only to carry out specified activities.
Section 214(b) of the Act requires a consular officer to “presume” that every applicant for admission is an “immigrant” unless he or she proves qualification for a nonimmigrant visa.
Essentially, for a visa classification which requires the applicant to have nonimmigrant intent (i.e., an unabandoned foreign residence and/or be coming to the U.S. temporarily), the officer must presume the applicant doesn’t meet those requirements unless the applicant can prove otherwise.
<Were You Refused Under Section 214(b)? The Issue May Not Be Nonimmigrant Intent>
Consular posts often issue boilerplate refusal notices citing 214(b) as the basis for denial but not explaining the factual basis for the denial. If your nonimmigrant visa application was denied, and you received a notice that it was denied under section 214(b), it may that the officer wasn’t convinced you had nonimmigrant intent. But the 214(b) ground for denial can be for other reasons too. It can be because the officer is not convinced that the applicant meets any of the particular requirements for a visa classification. In particular, it can be because the officer is not convinced the applicant will avoid activities inconsistent with the visa classification:
the applicant must make a credible showing to you that all activities in which the applicant is expected to engage while in the United States are consistent with the claimed nonimmigrant status.
Example 1: An applicant in the past committed a minor crime that doesn’t fall within the scope of the grounds requiring refusal for certain crimes. The officer nevertheless denies the application under 214(b) on the basis that the applicant may commit another crime in the U.S.
Example 2: An applicant previously worked illegally in the U.S. for a short time. The officer denies the application under 214(b) on the basis that the applicant may do so again.
Example 3: An applicant answers questions in a way that appears to the officer to be evasive or dishonest. The officer denies the application under 214(b) because the officer is not sure what activities the applicant really intends to engage in while in the U.S.
Nonimmigrant Intent
<Unabandoned Foreign Residence>
Various nonimmigrant visa categories require that the applicant “have a residence in a foreign country which he has no intention of abandoning.” For purposes of proving an unabandoned foreign residence, the term “residence” means one’s “principal, actual dwelling place in fact, without regard to intent.” This has been interpreted to mean:
- The officer should look at the objective facts (not subjective intent) to determine whether the applicant has a residence abroad. If so, then officer should also consider whether the applicant intends to abandon that residence.
- An applicant needn’t maintain an “independent household,” so it’s OK if the applicant’s residence is in a home owned by someone else.
- Also, one needn’t intend to return to the same home where he or she lived in the past—for example, an applicant who has been living in Germany, may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit to the U.S.
- The consular officer’s suspicion that after entering the U.S., the applicant “may be swayed to remain in the United States because of more favorable living conditions,” is not a sufficient ground to refuse a visa so long as the applicant’s current intent is to return to a foreign residence.
<Coming to the U.S. “Temporarily”>
Various of the nonimmigrant visa categories require the applicant to be “seek[ing] to enter the United States temporarily.” The term “temporary” isn’t specifically defined by statute. In its ordinary sense, “temporary” means “lasting for a time only; existing or continuing for a limited time.” There is no set outer limit such as six months or a year or even three years. The consular officer must be satisfied that the intended stay has a time limitation and is not indefinite in nature.
For a B visa applicant’s trip to be considered temporary, the applicant must have specific and realistic plans for the entire period of the trip. The period of time projected for the visit must be consistent with the stated purpose of the trip. And the applicant must prove an intention to depart the U.S. upon completion of that purpose. For example, the temporariness requirement would be met where one “cohabiting partner” will accompany another for a two-year work assignment or a four-year degree program and then depart the U.S.
For an O visa, a “temporary entry” means “entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien’s entry will be temporary, the O visa applicant must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.
<Factors Considered by the Consular Officer>
The requirements of keeping a foreign residence and coming to the U.S. temporarily are very closely related. They are two sides of the same coin. When a consular officer analyzes whether an applicant has met his or her burden of proving these two elements, the officer should consider the totality of the facts—all the factors that will push the applicant to return abroad and the all factors that will pull the individual to stay in the U.S. These factors include:
- Family and other compelling relationships (i.e., personal ties) in each country.
- Whether the applicant is being accompanied by most or all immediate family members, the reason for their accompanying him or her not being reasonably explained.
- Work and business ties and opportunities in each country.
- Homes owned or leased in each country.
- Property ties (e.g., car, other real estate, bank accounts, investments) in each country.
- Whether the applicant’s financial status is such that he or she may have to obtain employment in the U.S. to defray the expenses of his visit.
- Social or cultural ties in each country.
- Prior efforts to establish permanent residence in the U.S., especially where there is evidence the applicant is seeking to avoid quota restrictions. Also, prior visa refusals and U.S. immigration violations.
- Whether the purpose and itinerary of the U.S. trip are clear and consistent with the desire to keep a principal home abroad.
The applicant’s credibility is crucial. “Indications of possible deception arising from the applicant’s demeanor and/or inconsistencies in the applicant’s story may cause the consular officer not to be satisfied that the applicant” meets the foreign residence and temporary trip requirements.
Should you have any questions or concerns about the consular process and establishing “nonimmigrant intent”, please contact us at 718-539-1100 or info@jckimlaw.com.