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ImmIGRATION SEPTEMBER 17, 2021 | The Indian Eye 46
long live Matter of hosseinpour:
Making the Case for dual intent in
all nonimmigrant visas
Cyrus d. Mehta & in some nonimmigrant visa based on pending AOS out in INA 214(b). The O, Even before dual in-
isaBel rajaBzadeh* categories, including the applications are taking 9+ P, and E visas are quasi dual tent got recognized in the
H-1B visa, because it allows months to process. As ex- intent visas established by INA, the Board of Immi-
ne of the many the individual to contin- plained above, individuals regulations. While they al- gration Appeals in Matter
benefits of filing ue to work with the same therefore find themselves low the nonimmigrant to of Hosseinpour recognized
Oan Adjustment of employer without having relying on their nonimmi- be in the U.S. in that status way back in 1975 that the
Status Application (AOS) to separately apply for an grant status for work au- without needing to have filing of an application for
is the ability to concurrently EAD. thorization while their AOS a foreign residence, they adjustment of status is not
apply for work authoriza- As USCIS service EADs are pending in the still do not permit them to necessarily inconsistent
tion (Form I-765/EAD). In centers continue to be se- USCIS limbo. intend to seek permanent with the maintenance of
addition, the applicant can verely backlogged, we are For many nonimmi- residence in the U.S. As an lawful nonimmigrant sta-
remain in the United States required to adjust legal grant categories, the ben- illustration of quasi dual in- tus. There, the BIA was
while the AOS is pending strategy to combat these eficiary must not have tent, under 8 CFR 214.2(o) tasked with reviewing an
without maintaining sta- delays. One of the most af- the intent to permanently (13), an intent to remain F-1 visa holder’s eligibility
tus, although most opt to fected is the processing of immigrate to the U.S. As temporarily in the United for nonimmigrant status af-
maintain their dual intent work authorization. Earlier such, an important require- States is a requirement for ter filing an adjustment of
nonimmigrant status for as this year, the USCIS updat- ment for most nonimmi- O-1 classification. Howev- status application. In that
long as possible. One of the ed its expedite request pol- grant visas is having “a res- er, an applicant for an O-1 case, the BIA explicitly held
most popular dual intent vi- icy. Unfortunately, notwith- idence in a foreign country visa does not have to have that the filing of an adjust-
sas are H-1Bs. By extending standing the broadening of which he has no intention a residence abroad which ment of status application
their nonimmigrant H-1B the criteria, the requests of abandoning and who is he or she does not intend to “is not necessarily inconsis-
status, the individual would seem to be met with high visiting the United States abandon. tent with the maintenance
not start accruing unlawful scrutiny and are successful temporarily for business or As visa holders enjoy of lawful nonimmigrant
presence if the AOS is de- in limited cases. Nonethe- temporarily for pleasure.” the benefits of dual intent, status,” although F-1 visas
nied for whatever reason. less, we recommend filing (INA 101(a)(15)(B)). Al- we honor the memory of are not dual intent visas. In
Extending nonimmigrant the request if one meets the though the H-1B visa is a Dale Schwartz, the late im- its reasoning, the BIA re-
status while the AOS is criteria. Absent a success- nonimmigrant visa, it allows migration attorney who was ferred to legal precedent
pending is also beneficial ful expedite request, EADs for dual intent. This means highly respected in the field which states that “a desire
that the H-1B visa holder and was a former President to remain in this country
can have the intention of of the American Immigra- permanently in accordance
immigrating to the U.S. tion Lawyers’ Association. with the law, should the
while still maintaining his/ Mr. Schwartz had faced opportunity to do so pres-
her H-1B nonimmigrant criminal charges in the ent itself, is not necessari-
status. The Immigration 1980s in the wake of fed- ly inconsistent with lawful
and Nationality Act carves eral officials investigating nonimmigrant status.” (See
out the dual intent doctrine applications submitted on Brownell v. Carija, 254 F.2d
by explicitly excluding H-1B behalf of a British business- 78, 80 (D.C. Cir. 1957);
visa beneficiaries from the man who came to the Unit- Bong Youn Choy v. Bark-
requirement that “every ed States in 1980 to work er, 279 F.2d 642, 646 (C.A.
alien shall be presumed to for an American aerospace 9, 1960). See also Matter
be an immigrant until he company. The government of H-R-, 7 I & N Dec. 651
establishes to the satisfac- charged Mr. Schwartz with (R.C. 1958)). Further, the
tion of the consular officer, eight counts of mail fraud BIA reasoned that the F-1
at the time of application and false statements and student who applied for
for a visa, and the immigra- asserted that the British adjustment of status kept
tion officers, at the time of businessman intended to his intention to remain a
application for admission, live in the U.S. permanent- nonimmigrant student even
that he is entitled to a non- ly even though he was seek- though he had applied for
m of immigrant status.” (See ing a temporary visa. The adjustment of status. In that
CYRUS D. MEHTA & PARTNERS PLLC INA 214(b)). Therefore, officials ultimately dropped case, the student was willing
when an H-1B visa hold- the criminal charges, and to return home when his
er applies for adjustment we remember him here as studies were completed if
of status, he/she is able to a zealous advocate for non- ordered to do so. Howev-
maintain both the nonim- immigrant dual intent. It is er, the BIA ultimately dis-
migrant status and have the because Mr. Schwartz took missed the F-1 visa holder’s
immigrant intent. Other vi- the fall for everyone that appeal because the individ-
sas permitted to have dual Congress enacted the dual ual did not timely extend
intent also include the L intent carve out in INA his nonimmigrant stay and
2 6th Floor and V visa, under the carve 214(b) in 1990. remained beyond the au-
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