Most nonimmigrant classifications require aliens to prove they have a residence abroad that they do not intend to abandon, and that they do not have the intention to immigrate permanently to the United States. That being the case, taking steps towards U.S. permanent residence will, in most cases, jeopardize an alien's chances of acquiring a nonimmigrant visa or nonimmigrant status. The H-1B category, however, benefits from the doctrine of "dual intent." Dual intent allows a nonimmigrant to obtain or continue in a particular nonimmigrant status even though steps may have been taken towards obtaining U.S. permanent residence.
The doctrine of H-1B dual intent has the following legal bases:
- Unlike many nonimmigrant categories, I.N.A. § 101(a)(15)(H)(i) contains no requirement of proving there is a "residence in a foreign country which he has no intention of abandoning;"
- The H category is specifically excluded from the I.N.A. § 214(b)'s presumption of immigrant intent;
- Regulations at 8 C.F.R. § 214.2(h)(16)(i) state:
The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
An Important Difference In Dual Intent for O-1 and H-1B
Although the doctrine of dual intent is recognized for both O-1 and H-1B nonimmigrants on the question of labor certifications or immigrant petitions, O-1 nonimmigrants do not enjoy the same treatment after an application for adjustment of status (Form I-485) is filed:
- An H-1B applicant for adjustment of status who wishes to travel outside the United States and reenter while the I-485 is pending can elect to travel either as an H-1B, or on the basis of advance parole (if reentering the United States on advance parole, the alien would also have to have an EAD card in order to continue working for the employer).
- Although an O-1 applicant for adjustment of status can continue in O-1 status while an application for adjustment of status is pending (including filing for extension of O-1 stay when necessary), an O-1 adjustment applicant who wishes to travel outside the United States and reenter while the I-485 is pending must, like all adjustment applicants except H-1B and L, obtain advance parole before departing, or else the adjustment application will be considered abandoned. Reentering on advance parole (i.e. as an advance parolee) would also require the alien to have an EAD card in order to continue working for the employer while the adjustment application is pending.
The reason for this is that the travel and reentry benefit for H-1Bs is based on a very specific regulation [8 C.F.R. § 245.2(a)(4)(ii)(C)] that is limited to H-1s and L-1s (and their dependents), and does not include O-1s.