dvc

Meauxna said in a closed thread:

Since the thread is closed, I'm starting a new one...

This happens to be a topic I was looking into yesterday and is of CRITICAL interest to me ... so thanks in advance for any information provided!!

What I found on the USCIS site and was advised by counsel seems to contradict this advice, so I would very much like to request further information!!

What I found ... on the uscis.gov site...

Regarding "Dual Intent" ...

RE: http://www.uscis.gov/files/nativedoc...rants_2006.pdf

"If a nonimmigrant plans to immigrate to the United States at some point, he or she is said to have “dual intent” – i.e., the nonimmigrant, though in the United States on a temporary basis, intends to remain permanently. Only some nonimmigrant categories are permitted to have dual intent, and only under certain conditions."

"Under section 214(b) of the Immigration and Nationality Act, an individual is presumed to be an immigrant until he or she establishes that he or she is entitled to a nonimmigrant status" ....

"The Immigration Act of 1990 officially sanctioned dual intent for certain categories of nonimmigrants." ...

In summary, the document states that "dual intent" is (only?) specifically allowed for: H1-B, H1-C, L, E, O-I and P statuses.

However, it says nothing about VWP or B statuses.

It also seems to make no allowances for those currently in processing of either an I-129F or I-130 application. Which seemed to me to indicate quite the opposite of the above stated position... eg. that if one attempts to enter the US under a B visa or VWP that that person can be turned away because, by simple submission of an I-129F or I-130 app, intent of eventual permanent residence has established, regardless of intent for the current visit, and thus violates the terms of visitation under those statuses ... both of which require no permanent intent, EVER!!

This was also confirmed to me in a phone conversation with an immigration counselor from Catholic Charities yesterday, who specifically recommended not even bothering to try to bring my fiancee over for a visit after submitting an I-129F.

Which sucks!!!

Which I find completely unacceptable!!!

Can anyone provide any further information / confirmation / denial / or whatever on this topic!!! This is critically important to me!!!

Many thanks in advance
dvc

Noorah101

Hi dvc,

You ARE allowed to visit the USA while you have a K visa in the works. However, it is still up to the POE officer to actually let you in or not. This is true for anyone using the VWP or visitor visa. The visa (or VWP) only gets you as far as to the USA border. The final decision rests with the POE officer. If the POE Officer thinks that person will remain in the USA and try to adjust status, he can be turned away. But even someone with a K visa in the works is allowed to try to visit the USA, just like someone who does not have a K visa in the works.

Rene

ian-mstm

So it is... because it's completely *WRONG*. You *are* allowed to visit. Full stop. End of story.

Ian

Folinskyinla

<sigh>, reread the document. "Dual intent" is often misunderstood. The only specific waiver in the Immigration & Nationality Act are for H-1/4 and L visas. This was put in 1990 since the those categories were the most problematic.

Also, one needs to read the statutory definition of "immigrant" at 101(a)(15) of the Act -- ANY alien except for the following non-immigrants. In essence, the law states there is a presumption that you are an "immigrant" until proven otherwise. And there is nothing which says that presumption is irrebuttable. Don't read more into that than they say.

Duncan Roberts

Maybe I'm wrong but since a K-1 is filed then it should prove that you don't have duel intent when using the visa waiver since you have a low chance of trying to adjust your status whilst in the country on the VWP. Since the VWP would be used for a visit then there is no duel intent. As I understand it, it's not what your future plans are, it's what you can do once you are in the country on certain visas. Is that correct/close to correct/other?

Noorah101

Not really. Having a K-1 in the works does not prove that you do not intend to stay on this visit and adjust your status. At least, not according to POE officers. In fact if they know he has a fiancee in the USA, all the more reason for the OP to want to remain in the USA and not go back and forth again (in their minds).

Rene

Duncan Roberts

Well, I kind of agree it doesn't prove anything but if it were me I would put the risk as low compared to somebody who had a fiance and had not filed, provided no other circumstances. The filed K-1 shows some knowledge of how the system works, their willingness to follow it and make a financial commitment to it which in my mind would offset a lot of the fiance in the US doubt. It doesn't prove anything but it does start to show the proper intent. At least in my mind it does.

The main question I had was about the definition of duel intent and it not meaning what you actually are going to do but rather what you are able to do related to the status you enter the US on.

AlanR

Seems we're dueling again!!

penguinbar

My husband visited me a few times while our K1 was being processed. Each time the officers asked if he was on vacation (yes he was) and how long he intended to stay (a week each time) . One time he was asked what his job was in the UK (working for Royal Mail) The officer said he worked for the Post Office here for 20 years and the joked around with him and let him through. No need to volunteer any extra info but I wouldn't lie either. He brought proof of ties to the UK such as a copy of his mortgage and a job letter but was never asked. He was always let through. I think it might also make a difference on how often you plan to visit , how long your visits are for and how recent your last visit was. Let's say you vist in March for a month. Then you come back in May for another visit. They probably will want to know why you returned so quickly and could ask more indepth questions.

meauxna

Exactly!



There is a reason the thread topic was locked.
A Beneficiary is NOT barred by law from visiting.

Whether or not there are other factors they need to be concerned with in order to be admitted is another story.

dvc

Well, giving the admitted confusion over the meaning of dual intent, seems this is a needed discussion to me!!

Obviously anyone can be barred by other factors! However, as I had said, an immigration counselor for Catholic Charities, which is listed as a legal resource by the USCIS, btw, seems to be equally confused by duel intent.

What seems confusing to me about it is the lack of a time indicator....

note that:
... does not specifically state "during the visit" ... leaving open what is meant by "at some point" and hence the confusion, I believe.

After carefully reading 214(b) and 101(a)(15) and other seemly relevant sections of the Act ... and having a heck of a time trying to understand it!! ... it appears that the relevant wording in 101(a)(15)(B) is "...having a residence in a foreign country which he has no intention of abandoning..."

There is another section that seems to me have more specific relevance allowing (or, more precisely, not disallowing) fiancee visits, but I'm not sure I quite understand it, so I won't quote it.

But, in the document I previously quoted, the USCIS has, IMHO, re-interpreted the requirement in a confusing and imprecise manner. Indeed, I didn't see the term 'duel intent' anywhere in the act.

Also, whenever a simple, unqualified statement of supposed fact is presented on the internet (or even in a published book!!) is always prudent to question it, particularly when the potential stakes can be very high!!!

Thanks again everyone

Bluegrass Lass

Well, I can only provide you with another example. My (now) husband visited me twice while the I-129f was pending. He had no issues, and I think he even told the POE officer about the I-129f one time because the officer asked about it. BUT his visits were short visits. I think each one was only about 2 weeks, with several months in between.

ian-mstm

Well then... since you're confused, here's another tidbit that's sure to make your head explode! With respect to visas... just because "dual intent" is not specifically allowed, it doesn't automatically follow that "dual intent" is specifically prohibited.

Ian

dvc

Ian,

Actually, it does seem to follow from USCIS stated policy:
I'm curious, both Penguin and Sunflower (thanks for the info both you, btw!!!) have indicated that visiting LESS often might be beneficial, and I believe I've seen similar expressions in other threads as well.

This doesn't make logical sense to me. I would expect the opposite to be true... e.g. by establishing a history of entering, and, more importantly, exiting on time and in all other ways complying with regulations, I would expect one would experience LESS not MORE scrutiny. Why would there be any impression otherwise?

I do indeed intend to bring my fiancee over here on multiple trips. Last one was 4 days last month. Next one is Sat for 6 days in Disney World. The following one will probably be for Easter week break. Then, hopefully, again for the entire summer, 2 - 3 months. (She's a teacher, so this works well.)

I would love to hear opinions on this.

Thanks in advance
dvc

Just Jenney

Personally, I think immigration laws are kept deliberately vague so that the POE officers can lean more on their own discretion when deciding whether to let someone in or out. That's not a legal opinion, just my regular, average Joe opinion.

I think that you are looking for a perfect, one-size-fits-all answer to your question, and none exists. The lawyer you consulted says you can't visit if you have a I-129F petition pending. People on here have direct experience with visiting while their petitions are being processed and not have problems. If you do a search, you'll find other people who tried to visit and were turned away.

Ultimately it comes down to your fiancee's comfort level with the risk involved in trying to visit you while your petition is pending. She could be turned around and sent back home, or she could be let in.

As for her particular plans to visit, I think it might be a bit risky. The general rule of thumb is 90 days in, 90 days out. But you're saying she's looking at several visits over a short period of time, at least one of those visits being several months. I probably wouldn't chance it. But again, that's MY opinion, and ultimately it's up to her.

~ Jenney