GOING DEEP: Understanding "Immigrant Intent" Under U.S. Immigration Law

If you know anyone who has ever had a tourist visa denied by the U.S. consulate, odds are that the basis for denial is a very old and cryptic section of the U.S. Immigration and Nationality Act known as "Section 214(b)".  In 1952, when Harry Truman was presiden of the U.S., the "McCarran-Walters Immigration Act" was enacted, and Section 214(b) became among the very few provisions of U.S. law where instead of a presumption of INNOCENCE...the law presumes "guilt".  Here's the key language:

I.N.A. 214(b) [8 USC 1184(b)]:

"...every alien... 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...." [Emphasis added.]

The actual legal citation is longer and includes language exempting the H-1B and L-1A nonimmigrant visas, but the above excerpt tells you what you need to know: when a person walks up to the visa window at a US Consulate applying for a tourist, business, student or most other nonimmigrant visa (except the aforementioned and excepted H-1B and L-1A), the consular officer is required under Section 214(b) to:

• Assume you are lying about your intent to enter the U.S. temporarily
• Presume that whatever your indicated reason for U.S. travel, you are concealing immigrant intent and
• Only permit you to supercede that presumption via his or her subjective judgment and conclusion that you are NOT, in fact, intending to overstay your time in the U.S.

During my years as a visa officer in Mexico, I probably denied thousands of people based on Section 214(b).  I was working at what was at the time the highest volume visa processing U.S. consulate in the world, and our applicants came from all over the world, not just Mexico.  Typically speaking, 214(b) refusal rates are more common in poorer countries; the logic is that people seek opportunity, so a young, single professional with little opportunity and future options in a country such as, for example, Cameroon, is more likely to overstay his/her time in the U.S. than an identical applicant from a developed nation with a thriving economy.  From that standpoint, it makes sense.

Besides the fact that "presuming guilt" is anathema to those of us who believe in the U.S. rule of law, the operational problem with Section 214(b) is its failure to provide objective standards to visa officers.  With Spanish as my first language, I was able to distinguish - well, MOST of the time, I would hope - the difference between someone who is concealing "immigrant intent" and simply an unprepared applicant.  In the case of the former, I'd make a finding of 214(b), effectively dooming the probability of any future visa issuance (because U.S. visa officers rarely question the denial of a predecessor); in the case of the former, the unprepared applicant, I would annotate the denial as a "221(g)", a catch-all denial based on insufficient documentation which COULD be easily overturned when the applicant returned with the evidence I needed to see.

So, while it was easy for me to distinguish between a lying visa applicant and an unprepared one, such was NOT the case with my colleagues whose Spanish had been crammed into there heads over a few months at the Foreign Service Institute.  Lacking both the ability to interpret linguistic patterns and cultural nuances, I remember jumping in on many occasions when an outraged young visa officer was about to 214(b) a visa applicant simply because he or she misunderstood the response of the applicant.  Even among those of us trying to do our best, the subjective situation of effectively saying "PROVE to me you are not lying!" when the visa applicant appears at the window hardly sets the ideal scenario.

Now, for those of you still reading, here is the good stuff:  a COMPREHENSIVE understanding of Section 214(b) is critical for any Vietnamese investors making big family decisions about the possibility of a future life in the U.S.  Here's the thing: once you manifest "immigrant intent", it is virtually impossible for you to make it go away. Here's a common, real world example:

1. Mr.WOW is a successful businessman in Saigon and wants to take the family on their first trip to the U.S. to see his sister, a U.S. citizen, and HER family.
2. When Mr. WOW's sister became a U.S. citizen, she filed a Family Fourth Preference petition for Mr. WOW and his family.  That visa category currently has a 13 year wait!  But, unfortunately for Mr. WOW...
3. The fact that he is in that loooooong queue renders him ineligible under Section 214(b) because he is waiting for permanent residency...so he IS an "intending immigrant".

That, sadly, is what happens most of the time.  Back when I was a U.S. Vice Consul - we used to ride our dinosaurs to the consulate in the morning (-; - there was a concept known as "dual intent" which was in the regulations but subsequently removed.  The logic was sound and although it is no longer law, the prudent understanding of "dual intent" has long allowed reasonable and prudent U.S. visa officers (as well as savvy U.S. airport inspectors) to mete out more just results for those with long-way-to-go pending green card applications.  In the case of our fictional Mr. WOW, the visa officer could look at the circumstances of his life, the other tourist visas in his passports, the fact that his kids are in middle school, etc., and come to the conclusion that "dual intent" IS indeed the case:

I. Yes, Mr. WOW DOES have a pending F4 petition from his USC sister with a 13 year wait YET

II. Based on the totality of Mr. WOW's circumstance's, it is a pretty safe bet that Mr. WOW and family will NOT disappear into the tomato fields of California for  a life as an illegal alien but instead return to his good situation in Vietnam and patiently await the 13 year queue.

This proper understanding of "dual intent" is precisely the reason so many F-1 students in the U.S. can travel in and out of the country despite the fact that they or their parents have pending EB-5 petitions.  The notion that a kid is going to ruin his life by breaking his F-1 status when he has a path to permanent US residency down the road simply makes no sense.

Final thought: the Grenada CBI/E-2 option is certainly what I perceive to be the best bet for Vietamese investors looking to get their families to the U.S. sooner rather than later.  But if you are an EB-5 investor already pending in the system, you better make sure you speak to a U.S. immigration export before investing in CBI and your E-2 business...Section 214(b) can kill you plans very quickly if not carefully considered.

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