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> It's considered a dual-intent visa by USCIS which means that the USCIS also sees it as the first step to permanent immigration and naturalization. The way th

by xyzzyz 3y ago

> It's considered a dual-intent visa by USCIS which means that the USCIS also sees it as the first step to permanent immigration and naturalization. The way the “dual intent” thing works is not by making it a non-temporary, or immigrant visa. It is still a temporary, non-immigrant visa, and the law still says that having immigration intent still is grounds for refusing entry. The only thing the “dual entry” legislation did was to create the legal fiction, where the USCIS/CBP are not allowed to use the application for a green card as evidence of immigration intent. Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason. Today, according to law, you are still not allowed to have immigration intent while on H1B, it’s just now applying for a green card does not constitute evidence of immigration intent (which is, of course, entirely a legal fiction). The US immigration law and practice is completely insane. We have non-immigrant visas that, through legal fiction, are used to facilitate immigrations. At the same time, we have millions of people illegally crossing the border and making bogus asylum claims, which everyone understands to just be an immigration back door, created not through legislation, but rather discretion in enforcement. Instead of reforming the law to make it sane, and enforcing it (similar to eg. what Canada or Australia have), we have insane law, and strictly enforce it only against people who would be most valuable to have here.

arcticbull 3y ago
> The way the “dual intent” thing works is not by making it a non-temporary, or immigrant visa. It is still a temporary, non-immigrant visa, and the law still says that having immigration intent still is grounds for refusing entry. An immigrant visa to the US is a green card. Having immigrant intent is not a barrier to admission on a dual-intent visa. H-1s do not have to demonstrate that they have a "residence in a foreign country which he has no intention of abandoning" and "the H category is specifically excluded from the I.N.A. § 214(b)'s presumption of immigrant intent;" [1] > Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason. This is exactly what happens today if you file I-485 on a non-intent status like a TN. It doesn't happen on a dual-intent status. > Today, according to law, you are still not allowed to have immigration intent while on H1B, it’s just now applying for a green card does not constitute evidence of immigration intent (which is, of course, entirely a legal fiction). Regulation 8 C.F.R. § 214.2(h)(16)(i) states: "The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States." [1] Also you can possess immigrant intent and even petition from non-intent status like TN, so long as you developed said intent after arrival, and once you take steps (I-485 for instance) you can’t renew. A lot of folks apply for a green card from TN status, it’s just risky since you can’t leave until advance parole and if denied you may be deported. Applying for a green card through adjustment of status absolutely 100% counts as demonstration of immigrant intent. That is filing for I-485. Having your employer file I-140 doesn't because you didn't file it, your employer did. This is basically all wrong. Except for the part where you say that the US immigration system is silly - it is - and the part where you say that a system more like Canada and Australia would help - it would. [1] https://isss.temple.edu/international/h-1b-temporary-employees/immigration-concept-dual-intent https://isss.temple.edu/international/h-1b-temporary-employe...
- rayiner 3y ago
  The USCIS doesn’t make the law, Congress does. Its regulations are interpretations (and workarounds) of the statute. The statute is clear that H1B is a non-immigrant, temporary worker visa. “Dual intent” appears nowhere in the statute. It’s a legal fiction created by the regulation that’s necessary precisely because the statute requires non-immigrant intent. It doesn’t mean that the H1B visa allows either non-immigrant and immigrant intent. It means that you have both at the same time—the immigrant intent from filing for a green card, and the non-immigrant intent required by the H1B visa. The reason for all this is that the 1952 INA promised the American people that it would not change America’s demographic makeup. Nobody can get the votes to change that in Congress. But the executive branch can change the regulations unilaterally.
- xyzzyz 3y ago
  > Having immigrant intent is not a barrier to admission on a dual-intent visa. H-1s do not have to demonstrate that they have a "residence in a foreign country which he has no intention of abandoning" and "the H category is specifically excluded from the I.N.A. § 214(b)'s presumption of immigrant intent;" [1] You are missing the point. Yes, H1Bs are excluded from presumption of immigrant intent. This doesn't mean that they can have immigrant intent. Instead, the law says (reiterating what I said in my previous comment) that "the fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph". Of course, in practice, since the government has few other means of proving immigrant intent, and since they cannot presume immigrant intent, this means that the obvious immigrant intent exhibited by applying for permanent residence must be ignored. This is why the CFR says that, because this is true in practical application of the law. My point is that it is true thanks to legal fiction, where the government is obligated to ignore the obvious evidence of immigrant intent, notwithstanding legislation otherwise demanding lack of immigrant intent. > Also you can possess immigrant intent and even petition from non-intent status like TN, so long as you developed said intent after arrival, and once you take steps (I-485 for instance) you can’t renew. Yes, I talk about this in my comment, let me helpfully quote it, in case you missed it: > Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason. Observe that I explicitly say that this doesn't invalidate your status, only (effectively) your visa. > Having your employer file I-140 doesn't because you didn't file it, your employer did. This is incorrect, otherwise the legislation wouldn't need to say that "the fact that an alien is the beneficiary of an application for a preference status filed under section 1154 (...) shall not constitute evidence of an intention to abandon a foreign residence". > This is basically all wrong. Nothing I said is wrong, and nothing what you said has contradicted what I said (except where you were wrong). You are just talking past me: I acknowledge the practical reality of the consequences of the legislation and the ensuing CFR regulations (indeed, I am myself a beneficiary of the process, starting from a dual-intent L-1 visa). Instead, my point is that the law, instead of saying that "yes, it's totally kosher for for H1B holders to come here with immigrant intent", it schizophrenically says something like "no, you cannot have immigration intent on H1B, but unlike on, say, B1, you don't have to prove that you don't, and we will just pretend that your immigrant petition does not in any way show that you have an immigration intent (which, to reiterate, you shall not have)".

by xyzzyz 3y ago

arcticbull 3y ago

> The way the “dual intent” thing works is not by making it a non-temporary, or immigrant visa. It is still a temporary, non-immigrant visa, and the law still says that having immigration intent still is grounds for refusing entry. An immigrant visa to the US is a green card. Having immigrant intent is not a barrier to admission on a dual-intent visa. H-1s do not have to demonstrate that they have a "residence in a foreign country which he has no intention of abandoning" and "the H category is specifically excluded from the I.N.A. § 214(b)'s presumption of immigrant intent;" [1] > Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason. This is exactly what happens today if you file I-485 on a non-intent status like a TN. It doesn't happen on a dual-intent status. > Today, according to law, you are still not allowed to have immigration intent while on H1B, it’s just now applying for a green card does not constitute evidence of immigration intent (which is, of course, entirely a legal fiction). Regulation 8 C.F.R. § 214.2(h)(16)(i) states: "The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States." [1] Also you can possess immigrant intent and even petition from non-intent status like TN, so long as you developed said intent after arrival, and once you take steps (I-485 for instance) you can’t renew. A lot of folks apply for a green card from TN status, it’s just risky since you can’t leave until advance parole and if denied you may be deported. Applying for a green card through adjustment of status absolutely 100% counts as demonstration of immigrant intent. That is filing for I-485. Having your employer file I-140 doesn't because you didn't file it, your employer did. This is basically all wrong. Except for the part where you say that the US immigration system is silly - it is - and the part where you say that a system more like Canada and Australia would help - it would. [1] https://isss.temple.edu/international/h-1b-temporary-employees/immigration-concept-dual-intent https://isss.temple.edu/international/h-1b-temporary-employe...

rayiner 3y ago
The USCIS doesn’t make the law, Congress does. Its regulations are interpretations (and workarounds) of the statute. The statute is clear that H1B is a non-immigrant, temporary worker visa. “Dual intent” appears nowhere in the statute. It’s a legal fiction created by the regulation that’s necessary precisely because the statute requires non-immigrant intent. It doesn’t mean that the H1B visa allows either non-immigrant and immigrant intent. It means that you have both at the same time—the immigrant intent from filing for a green card, and the non-immigrant intent required by the H1B visa. The reason for all this is that the 1952 INA promised the American people that it would not change America’s demographic makeup. Nobody can get the votes to change that in Congress. But the executive branch can change the regulations unilaterally.
xyzzyz 3y ago
> Having immigrant intent is not a barrier to admission on a dual-intent visa. H-1s do not have to demonstrate that they have a "residence in a foreign country which he has no intention of abandoning" and "the H category is specifically excluded from the I.N.A. § 214(b)'s presumption of immigrant intent;" [1] You are missing the point. Yes, H1Bs are excluded from presumption of immigrant intent. This doesn't mean that they can have immigrant intent. Instead, the law says (reiterating what I said in my previous comment) that "the fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph". Of course, in practice, since the government has few other means of proving immigrant intent, and since they cannot presume immigrant intent, this means that the obvious immigrant intent exhibited by applying for permanent residence must be ignored. This is why the CFR says that, because this is true in practical application of the law. My point is that it is true thanks to legal fiction, where the government is obligated to ignore the obvious evidence of immigrant intent, notwithstanding legislation otherwise demanding lack of immigrant intent. > Also you can possess immigrant intent and even petition from non-intent status like TN, so long as you developed said intent after arrival, and once you take steps (I-485 for instance) you can’t renew. Yes, I talk about this in my comment, let me helpfully quote it, in case you missed it: > Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason. Observe that I explicitly say that this doesn't invalidate your status, only (effectively) your visa. > Having your employer file I-140 doesn't because you didn't file it, your employer did. This is incorrect, otherwise the legislation wouldn't need to say that "the fact that an alien is the beneficiary of an application for a preference status filed under section 1154 (...) shall not constitute evidence of an intention to abandon a foreign residence". > This is basically all wrong. Nothing I said is wrong, and nothing what you said has contradicted what I said (except where you were wrong). You are just talking past me: I acknowledge the practical reality of the consequences of the legislation and the ensuing CFR regulations (indeed, I am myself a beneficiary of the process, starting from a dual-intent L-1 visa). Instead, my point is that the law, instead of saying that "yes, it's totally kosher for for H1B holders to come here with immigrant intent", it schizophrenically says something like "no, you cannot have immigration intent on H1B, but unlike on, say, B1, you don't have to prove that you don't, and we will just pretend that your immigrant petition does not in any way show that you have an immigration intent (which, to reiterate, you shall not have)".