Prior to the enactment of the Immigration Act of 1990, the INS recognized the “dual intent” doctrine while the State Department did not.
Generally, the law requires that a nonimmigrant be maintaining a residence abroad which he has no intention of abandoning. When a nonimmigrant has an approved visa petition for lawful permanent residence, how can it be demonstrated that he has no intention of abandoning his residence abroad? Only by invoking the doctrine of dual intent. Simply put, this doctrine provides that although the nonimmigrant at some future date would like to reside permanently in the U.S., at the present time he merely wishes to reside in the U.S. on a temporary basis. Should his temporary stay in the U.S. expire before he attains permanent resident status, he intends to depart the U.S. and reside abroad until he is called for his immigrant visa interview.
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During the period when the INS recognized the doctrine of dual intent, but the State Department did not, a nonimmigrant with an approved permanent visa petition could easily qualify for an extension or change of status from INS, but be denied a new nonimmigrant visa from the Department of State. This rule resulted in considerable hardship upon nonimmigrants and their employers in the U.S. Lawful nonimmigrants employed in the U.S. were often effectively prohibited from traveling outside of the country until they had achieved permanent residence status.
The Immigration Act of 1990 codified the doctrine of dual intent, but only for H-1A, H-1B and L nonimmigrants.
Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl as featured in the February 2018 edition of SuperLawyers Magazine.
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