Gutted

So you know that trip to Patagonia? The one I’ve been super-excited about for

ages? The one which begins this coming Wednesday? Well, it’s off.

I’m not leaving the country, because I’m married to a US citizen. If I wasn’t

married to a US citizen, my plan would probably work fine: pop into the US embassy

in Lima on the way back from Patagonia, pick up a new I visa, and come back

to New York. But an I visa is a non-immigrant visa, and if you’ve been living

in the US for many years and are married to an American who lives in the USA,

you don’t look much like a non-immigrant any more.

It’s a bit counterintuitive, but it’s actually much, much easier to enter the

US if you’re not married to an American than if you are. Most people,

especially from countries that are part of the visa waiver scheme, can come

in as a tourist, or on one of any number of visas. If you get married to an

American, however, you basically have to go through the laborious green card

application procedure.

The one real weirdness I’ve discovered: the famous H1-B visa (I had two, in

my time) is a "dual intent" visa. That means, according to the wonderful

definition at this

website, that the holder can have "the intent to immigrate and nonimmigrant

intent". Most other visas, however, including my I visa, don’t allow such

a useful impossibility. I’d love to know the historical reason for this special

dispensation for holders of H1-B and L visas.

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10 Responses to Gutted

  1. Matt says:

    Will you ever be able to leave Manhattan?

  2. Mike's Mom says:

    Felix: Welcome to the wonderful world of U.S. immigration law!

    In general you’re right, in order to qualify for a non-immigrant visa (NIV in the trade) you must overcome the presumption of immigrant intent. But, and it’s a big but, the possibility of dual intent exists for all categories of NIVs. For instance, if you are the brother of a U.S. citizen who has filed an immigrant petition on your behalf you will have to wait over ten years to actually get the visa. In the meantime, you can apply for an NIV to attend a professional conference or visit Disney World with the kids. The consular officer can issue the NIV if convinced that you will return to your country of residence after a temporary visit to the U.S. and wait until your immigrant visa is available. That means you have to prove that you have a residence abroad.

    Some categories of NIVs (not just H visas) do not require a residence abroad. Specifically, there is no requirement in the Immigration and Nationality Act that applicants for I status establish that they have a residence in a foreign country which they have no intention of abandoning:

    In order to be classified as a nonimmigrant, the alien must prove “to the satisfaction of the consular officer that he or she is entitled to a nonimmigrant status under section 101(A)(15) (with certain exceptions)”. Thus, the alien must provide the consular officer a credible showing that he is entitled to nonimmigrant status and that his intended activities are consistent with the status for which he is applying.

    The consular officer assesses the credibility of the applicant and the evidence submitted to determine qualifications under 101(a)(15). The consular officer must be satisfied that the applicant will credibly engage in the activities authorized under the particular NIV classification, that the alien will abide by the conditions of that nonimmigrant category, and that the alien will thereby maintain lawful status.

    So it’s theoretically possible to renew your I visa, return to the U.S. and continue your journalistic career and at the same time file to adjust status to become an immigrant based on your marriage to Michelle. But based on experience I expect that it would be a hard sell at the visa window in Lima.

    And don’t rely on some lawyer’s website. Go straight to the Foreign Affairs Manual (http://foia.state.gov/REGS/fams.asp?level=2&id=10&fam=0).

    If you haven’t already, apply for the immigrant visa now and go to Patagonia in Aug-Sep. That’s when the sea elephants, right whales and Magellanic penguins all drop in to breed.

  3. Mike's Mom says:

    Felix: Welcome to the wonderful world of U.S. immigration law!

    In general you’re right, in order to qualify for a non-immigrant visa (NIV in the trade) you must overcome the presumption of immigrant intent. But, and it’s a big but, the possibility of dual intent exists for all categories of NIVs. For instance, if you are the brother of a U.S. citizen who has filed an immigrant petition on your behalf you will have to wait over ten years to actually get the visa. In the meantime, you can apply for an NIV to attend a professional conference or visit Disney World with the kids. The consular officer can issue the NIV if convinced that you will return to your country of residence after a temporary visit to the U.S. and wait until your immigrant visa is available. That means you have to prove that you have a residence abroad.

    Some categories of NIVs (not just H visas) do not require a residence abroad. Specifically, there is no requirement in the Immigration and Nationality Act that applicants for I status establish that they have a residence in a foreign country which they have no intention of abandoning:

    In order to be classified as a nonimmigrant, the alien must prove “to the satisfaction of the consular officer that he or she is entitled to a nonimmigrant status under section 101(A)(15) (with certain exceptions)”. Thus, the alien must provide the consular officer a credible showing that he is entitled to nonimmigrant status and that his intended activities are consistent with the status for which he is applying.

    The consular officer assesses the credibility of the applicant and the evidence submitted to determine qualifications under 101(a)(15). The consular officer must be satisfied that the applicant will credibly engage in the activities authorized under the particular NIV classification, that the alien will abide by the conditions of that nonimmigrant category, and that the alien will thereby maintain lawful status.

    So it’s theoretically possible to renew your I visa, return to the U.S. and continue your journalistic career and at the same time file to adjust status to become an immigrant based on your marriage to Michelle. But based on experience I expect that it would be a hard sell at the visa window in Lima.

    And don’t rely on some lawyer’s website. Go straight to the Foreign Affairs Manual (http://foia.state.gov/REGS/fams.asp?level=2&id=10&fam=0).

    If you haven’t already, apply for the immigrant visa now and go to Patagonia in Aug-Sep. That’s when the sea elephants, right whales and Magellanic penguins all drop in to breed.

  4. Mike's Mom says:

    Felix: Welcome to the wonderful world of U.S. immigration law!

    In general you’re right, in order to qualify for a non-immigrant visa (NIV in the trade) you must overcome the presumption of immigrant intent. But, and it’s a big but, the possibility of dual intent exists for all categories of NIVs. For instance, if you are the brother of a U.S. citizen who has filed an immigrant petition on your behalf you will have to wait over ten years to actually get the visa. In the meantime, you can apply for an NIV to attend a professional conference or visit Disney World with the kids. The consular officer can issue the NIV if convinced that you will return to your country of residence after a temporary visit to the U.S. and wait until your immigrant visa is available. That means you have to prove that you have a residence abroad.

    Some categories of NIVs (not just H visas) do not require a residence abroad. Specifically, there is no requirement in the Immigration and Nationality Act that applicants for I status establish that they have a residence in a foreign country which they have no intention of abandoning:

    In order to be classified as a nonimmigrant, the alien must prove “to the satisfaction of the consular officer that he or she is entitled to a nonimmigrant status under section 101(A)(15) (with certain exceptions)”. Thus, the alien must provide the consular officer a credible showing that he is entitled to nonimmigrant status and that his intended activities are consistent with the status for which he is applying.

    The consular officer assesses the credibility of the applicant and the evidence submitted to determine qualifications under 101(a)(15). The consular officer must be satisfied that the applicant will credibly engage in the activities authorized under the particular NIV classification, that the alien will abide by the conditions of that nonimmigrant category, and that the alien will thereby maintain lawful status.

    So it’s theoretically possible to renew your I visa, return to the U.S. and continue your journalistic career and at the same time file to adjust status to become an immigrant based on your marriage to Michelle. But based on experience I expect that it would be a hard sell at the visa window in Lima.

    And don’t rely on some lawyer’s website. Go straight to the Foreign Affairs Manual (http://foia.state.gov/REGS/fams.asp?level=2&id=10&fam=0).

    If you haven’t already, apply for the immigrant visa now and go to Patagonia in Aug-Sep. That’s when the sea elephants, right whales and Magellanic penguins all drop in to breed.

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