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Overview of Visas and Green Cards

There are different types of employment-based immigration benefit. Most often, a non-immigrant visa is issued to a person with permanent residence outside the United States, who wishes to be in the U.S. on a temporary basis for tourism, medical treatment, business, temporary work or study, as examples. There are more than 20 different categories of non-immigrant visa classifications, and we can work with our clients to obtain most of them.

An immigrant visa is issued to a person wishing to live permanently in the U.S. It is worth noting that under the employment based structure of most United States immigration, immigrant and non-immigrant visas are held by the employer, and to remain in status, the person can only work for that one employer doing the specific job he or she was approved for. There also exists a hybrid dual intent visa, such as the H-1B, where the person may intend to stay or leave at the end of the visa

Which brings us to a Green Card holder (lawful permanent resident). The holder of a green card has permission to stay in the United States permanently, and can switch employers and jobs at will. To be clear, the green card can be taken away in the event of fraud, felonious crimes, or failing to spend sufficient time in the United States, and is initially awarded in increments rather than for ever, but for the vast majority of intents and purposes, it is what it says - lawful permanent residency. In most cases, a permanent resident can apply for U.S. citizenship after a number of years.

What does this mean?

This all relates to the intent to remain in the United States. The holder of a non-immigrant visa must have what is called non-immigrant intent. In a practical sense, this means that their stated and demonstrated intent must be to leave the United States at the end of their visa. The “demonstrated” part of that involves maintaining sufficient ties to your home country to demonstrate that it remains your home. The US Immigration and Nationality Act (I.N.A.) assumes that foreign nationals have immigrant intent until they can show otherwise when applying for a nonimmigrant visa and/or entering the country in a nonimmigrant category.

 

When collecting a visa from the United States embassy, the burden of proof is on the beneficiary to show sufficient ties to their home country that will compel them to leave the United States after your temporary stay here. This assumption can be difficult to overcome, which is why the most common reason for a visa denial at the embassy collection stage is a failure to satisfy nonimmigrant intent. For example, a person remaining in the United States on a succession of short-term visas, with only extremely short breaks out of the country, for a sustained period of time, may be interpreted as having abandoned their home country, despite all periods of stay in the United States being legal. For this reason, preparation for the embassy interview is essential, so as to accurately represent non-immigrant intent, and to accurately show ties to the home country.

 

In addition, during most stages of an application for permanent residency (green card), the applicant can only leave and re-enter the United States on the status of their existing and valid visa. If that is a non-immigrant visa, but an application has been submitted for permanent residency, reentry creates a “conflict of intent”, as the candidate has demonstrated an intent to stay in the United States, but has to attest to their intent to leave at the end of their visa upon entry.

 

Dual Intent

Dual intent visas allow foreign nationals to apply for green card status in the U.S. while still classified under a temporary work visa. The “dual” intent is first, the intent to work in the United States with the help of a work visa, and second, the intent to apply for permanent residency.

 

Like most immigration conundrums, there are solutions, but they require planning and preparation. Contact us for a consultation to discuss your specific situation.

(88  (888) 365-VISA (8472) 

       (561) 3-20-20-90

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