What is the impact of I-140/485 filing on F-1 students?

The purpose of this memo is to shed some light on the issues of nonimmigrant intent requirements in connection with applying F-1 visa abroad and maintaining F-1 status within the United States . It also addresses the impact of filing I-140 and I-485 petitions on maintaining F-1 status, as well as applying for other immigration benefits.

1. Nonimmigrant Intent Requirements for F-1 Visa Application

The Immigration and Nationality Act requires that the F-1 visa applicant possesses a permanent residence in a foreign country he or she has no intention of abandoning. Perhaps in the mind of the law drafters, the "residence abroad" clause had somehow become a proxy for nonimmigrant intent, and this intent became a requirement for all nonimmigrant visas, except ones like H-1 and L, which no longer have, or never had, the "residence abroad" requirement.

The INA requires that at the time of F-1 visa adjudication, the consular officer be satisfied that the alien intends to depart upon termination of his/her student status. Consequently, the consular officer must be satisfied that the applicant, at the time of visa application:

(1) Has a residence abroad;

(2) Has no immediate intention of abandoning that residence; and

(3) Intends to depart from the United States upon completion of his/her course of study.

In the context of the F-1 visa application, due to the presumption of the immigration intent rule, an F-1 visa applicant has the burden to prove that s/he possesses a residence abroad that s/he has no intention of abandoning.

In practice, family, social, and economic "ties" are also often considered by the visa officer in evaluating an F-1 applicant's nonimmigrant intent. Understanding that the typical student is young, without employment, without family dependents, without substantial personal assets, and often without very specific plans for the future, the Department of State recently instructed its visa officers to consider the "residence abroad" requirement for students in a broader light, focusing on the student applicants' immediate intent. While students may not be able to demonstrate strong "ties", their typical youth often convey a countervailing major advantage in establishing their bona fides: they don't necessarily have long-range plans, and hence are relatively less likely to have formed the intent to abandon their homes. The F-1 applicant's intent is to be adjudicated based on his/her present intent - not on what that intent might be in the future, specifically during or after a lengthy period of study in the United States . Visa officers are supposed to assess intent only at the time of application for a visa. However, once non-immigrants enter the U.S. , the law allows them to change their minds about what they want to do."

2. Nonimmigrant Intent Requirements for F-1 Status Applications

An F-1 visa holder's non-immigrant intent will be examined again by the immigration officer at the port of entry. If the inspection officer finds no immigrant intent and allows the F-1 visa holder to be admitted into the U.S. , the officer will issue an I-94 card and the alien obtains a legal status to remain in the United States for the specific purposes designated by the visa for a limited time. A legal status allows the alien to remain in the US for the intended purpose of the visit, while a visa allows an alien to apply for admission into the United States for a specific purpose.

Students from some countries may have F-1 visas that are valid for several years and allow for multiple entries. If an F-1 visa holder left the U.S. and sought to return prior to the expiration of his visa, normally he would not have to apply for a new visa to come back to the United States before the expiration of his visa. However, if he or she has filed an immigration petition before seeking such a re-entry, he/she may be asked about or is legally obliged to disclose the fact of filing the immigration petition to the immigration officer at the border since the immigration petition is in direct conflict with the permitted purpose of an F-1 visa. If the F-1 visa holder discloses the filing of LPR application, he/she may be denied of entry because of the demonstrated immigrant intent. If the applicant conceals his or her true purpose for entering the U.S. , either on the visa application or to the inspector at the time of admission, visa fraud may be determined. If that is the case, he/she may be permanently barred from admission.

The application to change status (I-539) requires the applicant to disclose whether he/she has filed an immigration petition or has applied for the adjustment of status to permanent resident. Though not stipulated by statute, the specific "nonimmigrant intent" applies as a matter of practice to individuals who change their status in the United States to F-1 or F-2 student status from other statuses like B-1, B-2, J-1, J-2, M1 and M2, as indicated by the disclosure requirement. Though these individuals are no more required to provide evidence of their sufficient economic, familial, employment, and/or personal ties to their home country to ensure that they return home after completing authorized activities, studies and/or OPT, they do need to disclose whether they have filed an immigration petition or not.

For applications to change status to H and L (I-129), F-1 status holders who have filed I-1-40 and/or I-485 do not need to worry about "intent" issue because H and L visa/status allow "dual intent", which means that a person may choose to return to the home country or may choose to move to permanent residency status in the U.S. The USCIS, as well as the Department of State, do not use intent as a factor at all in adjudicating H-1b and L status and visa application. Furthermore, due to the permitted "dual intent", the filing or approval of a labor certification or the filing of a preference petition for an alien shall not be a basis for denying an H-1b petition, or the alien's application for admission, change of status, or extension of stay. But if the H and L status holders who have filed I-140 and/or I-485 seek to change status to F1, the non-immigrant intent requirement for F-1 status will kick in. Most likely, his/her request for changing status to F-1 will be denied due to the unallowable immigrant intent.

3. Change of Mind or Intent

The US immigration law does not prohibit F-1 status holders from changing their mind and deciding to pursue permanent residency once they arrive in the US . As a matter of fact, I-485 was systematically set up as a legal conduit for non-immigrants to change their status to permanent residents.

A related issue to the change of intent is preconceived intent or visa fraud. As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her visa. The courts have held that an alien may not enter as nonimmigrant in bad faith. The USCIS holds the opinion that F-1 students are deportable if they enter the U.S. with a preconceived intent to seek permanent resident status. If an alien files an immigration petition or applies to adjust to LPR status from a nonimmigrant status immediately after making the entry into the US, the USCIS would likely find that the alien entered with a "preconceived intent" to remain and that the F-1 visa was fraudulently obtained. The USCIS and the Board of Immigration Appeals can, as a proper exercise of discretion, deny the alien's adjustment application and deport him. The theory is that the alien would have never been admitted to the U.S. had he not misrepresented his intentions, so he was excludable at entry.

If the USCIS believes that at the time the applicant entered the US in his or her current nonimmigrant status the applicant had a "preconceived intent" to actually be in the status now being requested, the application for change of status can be denied, on the theory that the applicant tried to circumvent the visa process by entering on one visa and then changing to another status after entry. USCIS takes several things into account when considering whether an applicant may have had a preconceived intent, including (1) the time between entry in one status and an application to change status, and (2) when and how quickly the applicant began taking steps towards obtaining the new status.

In the scenario of changing status from B to F1, a B-1/B-2 cannot begin to attend school until his or her change of status to F-1 has been approved. If a request for a change from B2 to F1 occurs within 60 days of entry, the USCIS views the change as improper on the ground that the applicant's admission as a B-2 was improper because he had the "preconceived intent" to enter as a student (F1). If person obtained his/her school certificate before entry as B-2, an indication of preconceived intent to be a student, a visa fraud may be presumed unless the B2 applicant discloses his/her schooling intention to the visa officer or custom inspector, and an annotation of such an intention is marked in the B2 visa or I-94. Where request for change of status occurred within four months of entry and the SEVIS I-20 A/B was requested from the school within 45 days of entry, the USCIS's denial of change of status was upheld.

The statute does not specify a timeframe outside of which F-1 students can safely harbor their permanent intent without concern of detrimental impact. If the USCIS believes that the application for change of status is just an attempt to prolong the alien's stay in the U.S. indefinitely, USCIS may deny the change of status application on the theory that the alien "abandoned" his or her nonimmigrant intent. However, the intention to change to H and L, which no longer requires fulfillment of the "resident abroad" clause and allows dual intent - is apparently harmless. (Hence many foreign students change to H-1B after their one year of optional practical training without being deported.)
Last Updated on Tuesday, 28 June 2011 22:09