F-1 and I-485 Dual Intent

Non-immigrant Intent While Applying for F-1 Visa 

The Immigration and Nationality Act (INA) requires the F-1 visa applicant to have a permanent residence in a foreign country with the intent to return to that country. This Act requires this intent for many non-immigrant visas, with some notable exceptions: H-1, O, L and K have no "residence abroad" requirement. F and J visas do require a foreign residence and an intent to return to that residence at the end of the visa program. 

At the time of F-1 visa adjudication, the consular officer must be satisfied that the applicant intends to leave the United States at the conclusion of the school enrollment--either on graduation or upon ending enrollment in school for any reason. At the time of visa application, the consular officer looks for:

  1. a residence abroad;
  2. no immediate intention of abandoning that residence; and
  3. intent to depart from the United States upon completion of studyies.

The F-1 visa applicant has the burden to prove a residence abroad and intent to return.

To determine intent, the Consulate may consider family, social, and economic ties. Understanding that the typical student is young, without employment, without family dependents, without substantial personal assets, and often without very specific plans for the future, the Department of State recently instructed its visa officers to consider the "residence abroad" requirement for students in a broader light, focusing on the student applicants' immediate intent. Although students may not be able to demonstrate strong ties, their youth may help in establishing no intent to stay in the U.S., as they don't necessarily have long-range plans, and hence are perhaps less likely to have formed the intent to abandon their homes. The Consulate adjudicates intent on present plans--not on what intent might develop in the future. After a non-immigrant enters, however, the law allows for a change of intent. 

Non-immigrant Intent Requirements for F-1 Status Applications

After a foreign student obtains an F-1 visa, he/she is able to travel to the US and apply for admission into the US. The entry application process at a port of entry is also called or known as an inspection by the USCIS. During the inspection, an F-1 visa holder's non-immigrant intent will be examined again by the immigration officer at the port of entry. In most cases, if the inspection officer finds no immigrant intent and allows the F-1 visa holder to be admitted into the U.S., the officer will issue an I-94 card and the F-1 student obtains a legal status to remain in the United States   purposes for the duration of status to complete his/her studies. AnF-1 status allows the alien to remain in the US for the intended purpose of the visit, while an F-1 visa allows an alien to apply for admission into the United States for studies.

Students from some countries may have F-1 visas that are valid for several years and allow for multiple entries. If an F-1 visa holder left the U.S. and sought to return prior to the expiration of his visa, normally he would not have to apply for a new visa to come back to the United States before the expiration of his visa. However, if he or she has filed an immigration petition before seeking such a re-entry, he/she may be asked about or is legally obliged to disclose the fact of filing the immigration petition to the immigration officer at the border since the immigration petition is in direct conflict with the permitted purpose of an F-1 visa. If the F-1 visa holder discloses the filing of an immigrationapplication, he/she may be denied entry because of the demonstrated immigrant intent. If the applicant conceals his or her true purpose for entering the U.S., either on the visa application or to the inspector at the time of admission, visa fraud may be determined. If that is the case, he/she may be permanently barred from admission to the US.

The application to change status (Form I-539) requires the applicant to disclose whether he/she has filed an immigration petition or has applied for the adjustment of status to permanent resident. Though not stipulated by statute, the specific "non-immigrant intent" applies as a matter of practice to individuals who change their status in the United States to F-1 student status from other statuses like B-1, B-2, J-1, J-2, M1 and M2, as indicated by the disclosure requirement. Though these individuals are no more required to provide evidence of their sufficient economic, familial, employment, and/or personal ties to their home country to ensure that they return home after completing authorized activities, studies and/or OPT, they do need to disclose whether they have filed an immigration petition or not.

For applications to change status to H, O and L (Form I-129), F-1 status holders who have filed an I-140 and/or I-485 do not need to worry about the "intent" issue because H and L visa/status allow "dual intent", which means that a person may choose to return to their home country or may choose to move to permanent residency status in the U.S. The USCIS, as well as the Department of State, do not use intent as a factor at all in adjudicating H-1b and L status and visa application. Furthermore, due to the permitted "dual intent", the filing or approval of a labor certification or the filing of an immigration petition for an alien shall not be a basis for denying an H-1b, O or L petition, or the alien's application for admission for H, O and L, change of status to H, O or L, or extension of stay of H, O or L. But if the H, O and L status holders who have filed I-140 and/or I-485 seek to change status to a status that requires a non-immigrant intent like F1, the non-immigrant intent requirement for F-1 status will kick in. Most likely, his/her request for changing status to F-1 may have a risk of denial due to the immigrant intent.

Change of Mind or Intent 

United States Immigration Law does not bar F-1 status holders from wanting to change their intent once they arrive in the U.S and have resided for a period of time. As a matter of fact, Form I-485 (the Application to Register Permanent Residence or Adjustment of Status) serves as a legal conduit that allows non-immigrants to change their status to legal permanent residents. While F-1 status holders are not prohibited from wanting to pursue a change of intent from non-immigrant to immigrant, there are certain issues that arise when an alien decides to do so. 

One of the most prevalent issues related to a change of intent is USCIS’ notion of preconceived intent or visa fraud.  As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her visa. Before a non-immigrant visa applicant’s application is approved, a consular officer (at the U.S. Consular/Embassy abroad that the applicant submitted their application to) must first determine whether the non-immigrant actually seeks to enter the U.S. permanently. This precaution is taken because under the Immigration and Nationality Act [INA 214(b), 8 U.S.C. 1184(b)]there is a legal presumption that all persons seeking entry into the United States are immigrants. Therefore, in order for the non-immigrant visa application to be adjudicated, the applicant bears the burden of having to prove “non-immigrant intent:” that he/she (1) has a residence abroad, (2) has no immediate intention of abandoning that residence, and (3) intends to depart the U.S. upon the termination of the visa. 

The USCIS has discretion over the approval of COS and AOS applications and can deny applications if they are presumed fraudulent or if the alien has preconceived intent. Applications submitted between 1-30 days of entry are deemed fraudulent; those submitted between 30-60 days could be denied on the basis of presumed fraudulence; those submitted between 60-90 days could also be denied on the basis of preconceived intent, but the alien would be able to dispute the claim; applications submitted after 90 days will have the best chance of approval from the USCIS. [INA 214]The USCIS and the Board of Immigration Appeals can, as a proper exercise of discretion, deny the alien's adjustment application and deport him based on the theory that the alien would have never been admitted to the U.S. had he not misrepresented his intentions, so he was excludable at entry. If the USCIS believes that at the time the applicant entered the US in his or her current non-immigrant status the applicant had a "preconceived intent" to actually be in the status now being requested, the application for change of status can be denied on the theory that the applicant tried to circumvent the visa process by entering on one visa and then changing to another status after entry. USCIS takes several things into account when considering whether an applicant may have had a preconceived intent, including: (1) the time between entry in one status and an application to change status, and (2) when and how quickly the applicant began taking steps towards obtaining the new status.

In the scenario of changing status from B to F1, a B-1/B-2 cannot begin to attend school until his or her change of status to F-1 has been approved. If a request for a change from B2 to F1 occurs between 1-60 days of entry, the USCIS will viewthe change as improper on the ground that the applicant had the "preconceived intent" to enter as a student (F-1). If the alien obtained his/her school certificate before entry as a B-2, an indication of preconceived intent to be a student, it may be presumed that the visa was acquired fraudulently. However, if the B-2 applicant discloses his/her  intention to enroll in school to the visa officer or custom inspector, and an annotation of such an intention is marked in the B-2 visa or I-94 indicating that the alien is a perspective student, the visa will not be presumed fraudulently obtained. [8 C.F.R. 214.2(b) (7); 248.1(c) (3)]

If the USCIS believes that the application for change of status is just an attempt to prolong the alien's stay in the U.S. indefinitely, the USCIS may deny the change of status application on the theory that the alien "abandoned" his or her non-immigrant intent. However, the intention to change to H and L, which no longer requires fulfillment of the "resident abroad" clause and allows dual intent, is apparently harmless. (Hence many foreign students change to H-1B after their one year of optional practical training without being deported.)

In absence of preconceived intent or visa fraud issues, an F-1 student may legally apply for the immigration petition (I-140 or I-130) and adjustment of status in the US.

The Difference between Immigrant Intent and Immigrant Desire 

In the case Brownell v. Carija, the court held that an alien who originally entered under a non-immigrant visa can have a "desire or purpose or intent" to remain in the U.S. if the law affords him such an opportunity. Furthermore, a non-immigrant visa applicant's desire to remain must be distinguished from his or her intent to remain. In the case Lauvick v. INS, the 9th circuit judge reversed the denial of an E-2 for an applicant who expressed the desire to immigrate, but did not intend to immigrate if not permitted. In a 1975 case, the Board of Immigration Appeals held that a foreign student's attempt to adjust status did not automatically make him deportable and cited a line of holdings to the effect that "a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful non-immigrant status." These cases that differentiate desire from intent have never been explicitly over-ruled, and immigration attorneys still cite them as classic sources for the doctrine of "justifiable intent."

Therefore, the immigrant intent is arguably the intent to remain in the US without lawful permission after his or her status expires whereas the immigrant desire is to stay in the US if the law affords him to do so.

Maintain, Terminate, and Lose F-1 Status 
An F-1 student is admitted for duration of status. The student is considered to be maintaining his/her status if s/he is making normal progress toward completing a course of study. According to this provision, "making normal progress toward completing a course of studies" is the only thing required to maintain F-1 status as stipulated by immigration law. Based on this understanding, F-1 students who file the I-140 do not fail to maintain their F-1 status simply because of this filing.

8 CFR 214.1 (h) provides the circumstances that non-immigrant status be terminated: "[w]ithin the period of initial admission or extension of stay, the non-immigrant status of an alien shall be terminated by the revocation of a waiver authorized on his or her behalf under section 21 (d) (3) or (4) of the Act, by the introduction of a private bill to confer permanent resident on such alien; or, pursuant to notification in the Federal Register, on the basis of national security, diplomatic, or public safety reasons." Note that filing an LPR petition is not listed as a circumstance that can lead to the termination of non-immigrant status.

According to 8 C.F.R. section 214.2 (f)(5)(f)(6), if a student is employed without authorization, is not pursuing a full course of study, transfers schools without permission, or fails to complete a full course of study in time and is ineligible for a program extension, s/he is out of status and subject to deportation. Under this provision, filing an I-140 or I-485 is not listed as a cause for being "out of status."

Some attorneys may argue the laws require the F-1 student to have non-immigrant intent to maintain his/her status. However, some legal experts observe that such "non-immigrant intent" is inconsistent from a historic viewpoint and illogical from the spirit of law. If F students are allowed to have the intent to switch to H-status, and H-status allows for the intent to switch to LPR status, then isn't the desire to switch from F status to H status a strong indication that an alien intends to stay in the US and is therefore not eligible for the F status? Put differently, if F aliens can freely change to H status and H aliens can freely change to LPR status, then logically speaking F aliens should be allowed to freely change to LPR status.

Moreover, if assuming that the USCIS interprets the non-immigrant intent broadly to cover the maintenance of F-1 status, an F-1 status holder who has filed an immigration petition may argue that his filing of I-140 is a "law-afforded" action to test whether he can lawfully remain in the US permanently and his legitimate desire (not intent) as demonstrated by the I-140 filing therefore should not negatively impact his F-1 status quo. Since the first desire (filing the I-140) is authorized by law, a reiteration of the desire (filing the I-485) should invite nothing more than a second authorization.

Therefore, it is reasonable to conclude that "non-immigrant intent" can be interpreted differently under different scenarios and is applied differently for applying for F-1 visa outside the US and for maintaining F-1 status while in the US.

Some Practice Tips 

Filing an I-140, immigrant petition, and/or and I-485, application for an adjustment of status, shows specific "immigrant intent." These actions show specific immigrant intent and make it very hard if not impossible to apply F-1 visa, make an entry into the US with F-1 visa, or to much less extent, change into F-1 status in the future from another status . Please note that the law does not treat the filing of I-140 and I-485 petitions differently with regard to finding "immigrant intent." Some attorneys may argue that a filing of an immigration petition shows an immigration desire and a filing an I-485 marks an unequivocal and affirmative action to perform or realize the immigrant intent. However, some attorneys may argue that filing an I-140 only expresses a desire to seek a law-afforded measure to stay and filing an I-485 is only to seek a derivative benefit of I-140 or to naturally extend a justified desire. As you can see, law can be read and interpreted literally or liberally. The enforcement of law can be affected by the change of circumstances and the discretionary power of an adjudicator. To optimize your chance and minimize your risk, we provide these practice tips for different case scenarios.

  1. Travel Abroad: If an F-1 student travels abroad without an advance parole, there will be two likely consequences: (1) the individual will be deemed to have abandoned his/her application for an adjustment of status (I-485); and (2) the individual will have a very hard time to get F-1 visa and probably not be permitted to enter the United States as an F student because he/she has demonstrated "immigrant intent" by virtue of filing an I-485 petition.
  2. Applying for OPT: The F-1 individual who has applied for an immigrant petitionmay apply for F-1 OPT and usually should get OPT. His or her immigration petition should not affect his OPT application. However, the filing of an I-485 may make him/her ineligible to receive the F-1 OPT/EAD if the school becomes aware that he/she filed an I-485. Even if his/her OPT/EAD application is denied, he/she would not lose his/her F-1 status so long as he/she continues to take a full time level of course work since there is no triggering event for the USCIS to invalidate the F-1 status as a matter of practices.
  3. Maintaining F-1 status: The filing of I-140 / I-485 should not affect an F-1 student to his/herunderlying-1 status in the United States. If the F-1 student remains in the United States and continues his/her full time studies, he/she should be fine because the filings of an immigration petition or an adjustment of status applications are allowed under the laws and there is normally no circumstance where he/she would be asked about the disclosure of filing the I-140 and/or I-485.
  4. Applying for an H-1: The application of I-140 / I-485 will not affect in any way, the F-1 student's application for H-1 since the H-1 allows a dual intent and there is no need to disclose about the filing of I-140 or I-485. Generally, there should not be a detrimental consequence if the I-140 Principal who is in F-1 status files a Form I-129 Nonimmigrant Petition to change his/her status to H-1B. In addition, there should not be a detrimental consequence to the I-140 Derivative Spouse and he/she can request to change to H-1B or H-4 status. Moreover, there is no detrimental consequence to the I-140 Derivative Spouse when changing to F-1 because the I-140 petition is not his/her petition and therefore he/she would not have immigrant intent.
  5. Applying for an I-485 and EAD: If the F-1 student will not be able to get an H-1, he / she should apply for the I-485 with the I-140 in order to obtain the EAD if the immigrant visa number is available to him / her. However, if the F-1 student uses the EAD under the I-485, he / she is in the I-485 pending status and will have to leave the US if the I-140 or I-485 is denied by the USCIS.

Applying for Advance Parole: If the F-1 student would like to travel abroad while his I-140 is pending and the immigrant visa number is available, we strongly suggest that he or she apply for the I-485 and advance parole document, which will allow the applicant to travel in and out of the United States while the I-140 is pending. Please note that the only way to be eligible for the advance parole, in this case, is to file the I-485. If the visa numbers is not available, then the F-1 student will not be able to file the I-485 or any applications for derivative benefits, including employment authorization and advance parole. In closing, if the F-1 student applied for an immigration petition, remain in F-1 status and the I-140 is denied, he/she may encounter problems when: (1) traveling abroad and attempting to reenter in F-1, because he/she has expressed immigrant intent;Pursuing lawful permanent residence in the United States is always a difficult and challenging procedure due to the complexities of U.S. immigration laws and regulations. For this reason, it is highly recommended that you consult an experienced and qualified attorney prior to initiating any application for permanent residence to ensure that you, first and foremost, are eligible for such a classification and to ensure that your underlying status in the United States is always protected. If you have any questions about your status, please do not hesitate to contact our experienced and knowledgeable attorneys who are always happy to assist you. 


NOTICE

This article is based on the legal authorities currently available and known USCIS practices. Immigration laws depend on implementation and policies of USCIS. USCIS may change its policies and practices at anytime. This article is provided for information purposes only, may not be construed as legal advice for a particular situation, and does not establish an attorney-client relationship.


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