Non-Immigrant Visas and Preconceived/Immigrant Intent

By: Lilli Baculi, Esq.

 Generally, foreign nationals who are issued non-immigrant visas enter the United States for a temporary period of time and are restricted to the activity consistent with their visas – for example, a person holding a tourist visa is not allowed to work or permanently reside in the United States. Non-immigrants must represent that their stay in the United States is temporary.

  1. Kingston, a United States citizen, and Hayley, a foreign national, have been friends since they were six years old. When they were 12, Kingston immigrated to the United States with his family. He and Hayley stayed in touch via emails, letters, and phone calls and have remained good friends for the past ten years. Hayley applied for and was issued a B-2 visitor’s visa to enter the United States. She arrived at San Francisco International Airport on November 18, 2013. On November 30, Kingston proposed to Hayley, and on December 1, they were on their way to Las Vegas, Nevada to get married.

With a newly minted marriage certificate, Kingston and Hayley would like to file for Hayley’s adjustment of status application immediately. What sorts of problems might they be facing?

Preconceived Immigrant Intent.     In general, there are no specific statutory bars to adjustment of status based solely on immigrant intent as it applies to non-immigrants. However, if, like Hayley, a foreign national enters as a non-immigrant, she can be denied adjustment of status as a matter of discretion under the notion of what is called “preconceived intent” to immigrate. What “preconceived intent” means, is that the United States Immigration and Citizenship Service (USCIS) makes a determination that when the foreign national entered as a non-immigrant, his/her intent was not temporary intent, but rather an intent to become an immigrant.

One factor that the USCIS will look at is when a foreign national engages in a rapid sequence of events that would lead one to conclusion that they have been seeking to immigrate to the United States all along.

Here, we look at Hayley who is holding a B-2 visitor’s visa. She entered the United States on November 18, 2013 and on December 1, 2013 – a mere thirteen days since she first set foot in the United States – married a United States citizen. This particular sequence of events would seem to neatly fall into the “rapid sequence of events” category as described above.

Again, there are no specific statutory bars to adjustment of status based solely on immigrant intent. In the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a non-immigrant with a preconceived intent to remain. However, it is important to be aware of the possible legal ramifications of “immigrant/preconceived intent,” and what legal options are available to applicants who might be facing this particular charge when they are applying to adjust status to that of a lawful permanent resident. In some instances, the adjustment applicant cannot adjust status within the United States and will have to consular process abroad, and/or a waiver might be required.

No two cases are exactly the same. Those in similar situations as Hayley and Kingston should consult with an experienced and competent immigration attorney immediately, and more importantly prior to filing any applications with the USCIS, in order to explore their options and possible legal ramifications that they might be facing. As always, be wary of online tools that offer immigration help or notarios who are not licensed to practice law.

Atty. Lilli A. Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 509-7280; lbaculi@ctvattys.com.