The Presumption Of Immigrant Intent For Nonimmigrants

TN Work Visa for the United StatesOne reason for the denial of many USA nonimmigrant visas is due to the failure of the applicant to overcome the presumption of immigrant intent. This legal presumption or legal finding can be made by a consular officer at a US consulate or embassy without evidence or proof. It is the responsibility or burden of the visa applicant to overcome this presumption.

The basis for this presumption is a provision of immigration law known as Section 214(b) INA. The law states as follows:

(b) Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .

This provision is a ground of inadmissibility, or in common English, a basis to refuse either a visa or admission to the USA. To understand more about how the presumption applies and who may either be exempted from the presumption or given a lower standard to overcome the presumption, a review of some of the various nonimmigrant visa categories is required.

USA law for nonimmigrant visas covers categories from A through V. Most of these visas are pure intent nonimmigrant visas. In other words the applicant must have pure nonimmigrant intent to remain eligible to receive the visa, and be admissible to enter the USA. Two very clear examples of pure nonimmigrant visas are B visitors and F students. Both B-1/B-2 and F-1 visa applicants must establish their pure intention to return to a foreign home or residence upon the completion of their stay in the USA. A good discussion of pure nonimmigrant intent and the ways that a student may go about proving their nonimmigrant intent can be found at this Boston University site:

Applicants for two visa categories in significant demand are exempted by the law from having to overcome the presumption of immigrant intent. These are H-1B specialty occupation workers and L-1 intracompany transferees. Not only can these visa applicants ignore the presumption, but they may also have pending immigrant visa filings and remain qualified and admissible in the H-1B and L-1 visa categories.

Other visa categories have a relaxed standard of the presumption. Historically these visas have been discussed as permitting dual intent, or a long term plan to immigrate but a present intention to obey the law and depart when and if required. Both O and P visa applicants enjoy this standard. E-1 and E-2 treaty visa applicants need only to present an unequivocal intent to depart the USA when their visa status expires to be deemed eligible for that type of visa and admissible. The US Foreign Affairs Manual confirms this longstanding policy. There is no requirement for E-1/E-2 treaty visa applicants to have a foreign residence that they do not plan to abandon.

TN applicants under NAFTA do not enjoy the same clarity of their intentions. The US Foreign Affairs Manual provides some helpful guidance as follows:

The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. An intent to immigrate in the future which is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.

Some guidance on this policy has indicates that the filing of an immigrant matter with the applicable US agency may not suffice to establish immigrant intent of a TN worker standing alone. On the other hand the approval of an immigrant petition may be sufficient to establish immigrant intent. Once again, the presumption of immigrant intent falls into an unclear area at this point. A Mexican national seeking a TN visa at a US consulate in Mexico may find this policy to be much harsher than a Canadian national seeking entry without a visa at a US customs inspection location in Canada. The nationality of the applicant plays a role in 214(b) determinations, meaning that nations that have a high visa refusal rate and domestic circumstances that likely promote the departure of their citizens to emigrate to other nations will have higher standards to overcome the presumption.

US consular officers have a large amount of discretion over 214(b) decisions. They can ignore an approved immigrant petition for someone that may be in an immigrant quota or waiting line that is many years long. Again the US Foreign Affairs Manual provides some guidance for making exceptions on individual cases that clearly indicate long term immigrant intentions. Likewise the kind of proof to overcome the presumption of immigrant intent is very low for nations that have low visa refusal rates and low numbers of visa violations. For example, citizens of Visa Waiver or ESTA nations may not be required to present proof or a statement of pure nonimmigrant intent to secure visas when needed. Citizens of nations with current difficult circumstances and with low visa approval rates will have high standards to overcome the presumption.

For the great majority of nonimmigrants, understanding the presumption of immigrant intent and how this can impact either visa applications or their admission by US Customs is important. Having a clear present intention, and in many cases supporting documentation to establish clear reasons to depart from the USA at the completion of a nonimmigrant stay can avoid denials of visas or refusal of admission.