Non-Immigrant Visas
Generally, nonimmigrants must represent that their stay in the U.S. is temporary.
When you visit the U.S. Consulate at the U.S. embassy, a consular officer must determine whether the nonimmigrant actually seeks to enter the U.S. permanently. Under INA §214(b), 8 U.S.C. §1184(b), there is a legal presumption that all persons seeking entry are immigrants. The Immigration Act of 1990, exempted H-1 and L categories from INA §214(b); 22 C.F.R. §41.11. The Dept. of State's subsequent cable has confirmed this by determining that "even if the [H-1B, H-4, L-1 or L-2] alien has a clearly articulated intention of acquiring permanent residence, the application may not be denied for that reason." Cable, DOS, 91-State-171115, ¶8 (May 24, 1991), reprinted in 68 No. 21 Interpreter Releases 681-84 (June 3, 1991). Moreover, DHS regulations recognize that the filing of an application for or approval of a labor cert. or IV petition or the filing of an A/S application "shall not" be a basis for denying H-1 or L-1 petitions, extensions or C/S to a H-1 or L- 1 classification or for the dependent family members. 8 C.F.R. §§214.2(h)(16), (l)(16).
At least one federal Court has held that there is a definite distinction between desiring, in the abstract to remain and actually intending to remain in the U.S. Lauvik v. INS, 910 F.2d 658, 660-61 (9th Cir. 1990)(overturned an E-2 denial where applicant expressed desire to immigrate but did not intend to immigrate if not permitted).
A nonimmigrant must demonstrate genuinely that his/her intent is to remain in the U.S. temporarily; but he or she may also have a long term intent to remain permanently. This is known as the doctrine of dual intent. «Matter of H-R-, 7 I&N Dec. 651, 654 (R.C. 1958). The doctrine of dual intent is recognized by the CIS for H/L visa categories. 8 C.F.R. §§214.2(h)(16), (l)(16). The doctrine of dual intent is also recognized for persons in E status. Letter, Bednarz, HQ 214e-C, 245-C (Oct. 1, 1993), reprinted in 70 No. 42 Interpreter Releases 1444, 1456-58 (Nov. 1, 1993).
Because dual intent exists for persons in E-1, E-2, H-1 and L status, a person in any of these categories can file for an extension even after she files an application for A/S. 8 C.F.R. §§214.2(h)(16)(i), (l)(16)(ii).
NIVs need a passport valid for 6 months beyond the time of anticipated stay and a valid nonimmigrant visa or border crossing card. INA §212(a)(7)(B)(i), 8 U.S.C. §1182(a)(7)(B)(i); 22 C.F.R. §41.104. The U.S., by agreement with certain countries, will allow persons to enter the U.S. even if their passports are not valid for 6 months because those countries have agreed to extend automatically passport validity six months beyond the expiration date of the passports. For a list of the countries which include Argentina, Canada, Colombia, Mexico, the UK, Venezuela and many others see 64 Fed. Reg. 14300-01 (Mar. 24, 1999) reprinted in 76 No. 12 Interpreter Releases 504 (Mar. 29, 1999). An applicant for admission may also have his/her visa in an invalid passport if it is a multiple entry indefinite visa and s/he is in possession of a valid passport. 22 C.F.R. §41.112(b)(3). 6. An NIV holder will not be readmitted into the U.S. if s/he overstays the time authorized in the U.S. on her last entry unless s/he obtained a new visa at the consular office in the country of her nationality or another consular office if no consular office exists in her country of nationality, or the Sec. of State finds extraordinary circumstances. INA §222(g)(2), 8 U.S.C. §1202(g)(2). This provision applies to persons who first overstayed after Sept. 30, 1996. Memo, Crocetti, Assoc. Comm., Examinations (1997), reprinted in 16 AILA Monthly Mailing 347 (May 1997).
II. PROCEDURES
A. Consular and Immigration Inspection
1. Consular Review. There are two levels of scrutiny for persons seeking to enter the U.S. as nonimmigrants. First, the applicant must seek and obtain a visa at a U.S. {} embassy or consulate unless s/he is visa exempt. The applicant must present himself at the embassy or consulate and submit a DS-156 form. All males between the ages of 16 and 45, except those applying as A, G and NATO applicants, are required to fill out a DS-157 post-Sept 11, 2001. Cable, DOS, 02-State-6020 (Jan. 11, 2002) reprinted in 79 No. 4 Intepreter Releases 118-19 (Jan. 21, 2002). Photos and fingerprints are now required for each visa applicant. If a visa is issued, the Secretary of State must establish an electronic version of the visa file so that it will be available to DHS officers at the ports of entry. INA §221(a)(2), 8 U.S.C. §1201(a)(2).
Consideration of Visa Application. Consular officers are permitted to consider all available information, 22 C.F.R. §§41.102(b), 41.103(b) and 41.105(a), and in the view of one court, may consider hearsay evidence to establish a reasonable belief to deny a visa. «Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990)». Consular officers are also required to act on visa applications before them. 22 C.F.R. §42.81; «Patel v. Reno, 134 F.3d 929 (9th Cir. 1997)» [Mandamus jurisdiction is available to compel decision on case].
Denial of Visa By Consular Officer. If a consular officer denies a visa s/he "shall provide the applicant a timely written notice" that states the basis for the determination and lists the specific provisions of the law. INA §212(b), 8 U.S.C. §1182(b); 22 C.F.R. §41.121(b).
Before denying a visa: (1) a consular officer should give the applicant an opportunity to be interviewed in person with "every reasonable opportunity to establish their eligibility to receive a visa"; (2) they should inform the applicant of the section of the law under which the visa was refused, "as well as the underlying factual basis for the refusal unless the facts are classified or secret but unclassified"; and (3) they should explain the refusal in person. Cable, 01-State-102813 (June 12, 2001) reprinted in 78 No. 26 Interpreter Releases 1145-47 (July 9, 2001). Also, a consular officer cannot deny a visa for discriminatory reasons based exclusively on a profile. «Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997)» [In the review of the legality of the discharge of a consular officer, the court found the consulate's practices discriminating]. In granting a visa, consular officers should grant them for the full period of validity under reciprocity schedules and should not grant limited visa validity because they have doubts about the applicant's immigrant intent. Cable, DOS, 01-State-45943 (Mar. 15, 2001) reprinted in 78 No. 14 Interpreter Releases 644-45 (Apr. 9, 2001).
Immigration Admission. After obtaining the visa, s/he must be admitted into the U.S. at the border or pre-flight inspection station by a CBP officer. If admitted, s/he will be given an I-94 card. This card will govern the terms of his/her stay in the U.S. If entry is denied, the nonimmigrant may be put in a removal proceeding to remove him/her from the U.S. If a consular post has issued a visa, however, it is prima facie evidence of admissibility sufficient to shift the burden of producing evidence to the DHS at a removal hearing where admissibility is questioned. «Matter of Walsh & Pollard, 20 I&N Dec. 60 (BIA 1988).
4. Hs, Ls, Ks, Os, Ps, and Qs need prior approval at CIS Service Center (Texas, Vermont, California, Nebraska) of petitions before applying at a consular post. INA §214(c), 8 U.S.C. §1184(c). When an approval notice is lost or when there is a desire to notify a new U.S. Consulate about an approval, a duplicate approval notice is requested on an I-824. Fs, Ms, and Js need certification from school/program sponsor. Burden of proof is on petitioner for all petitions. «Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).
7. Stateside third country nationals. Appointments for visas for stateside third country nationals (TCN's) at border posts in Canada and Mexico are now made by calling a telephone number in advance. The number is (900) 443-3131. Persons who are from one of the countries that is designated a state sponsor of terrorism (Cuba, Iran, Syria, Sudan, North Korea or Libya) may not apply stateside for a visa. {}
Nationals of certain countries do not need to have a visa implemented in their passport to arrive as visitors. Waiver for persons from certain countries applying as B-1/B-2 for a period not in excess of 90 days with non-refundable ticket (at present Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zeland, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the U.K. It does not apply to British overseas citizens, British dependent territories' citizens, or citizens of British Commonwealth countries). 8 C.F.R. §§212.1(i), 217.2.