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Posts Tagged ‘Dual Intent Doctrine’

14th September 2009

In a previous blog posting we discussed the K2 child visa which is a derivative visa of the K1 fiance visa. The K2 visa is intended for the unmarried minor children of K1 visa applicants. Both visas have an initial validity of 90 days, but if the K1 visa holder adjusts status, then the K2 visa holder can “piggyback” their application for adjustment onto that of their parent and obtain permanent residence as both a derivative and a step-child.

K3 visas operate in a similar manner as the K1 visa. K3 visas are non-immigrant visas that allow for dual intent. This means that the entrant can have non-immigrant as well immigrant intent at the time of entry in the United States of America. For those with children, the K4 visa is one way of bringing a K3 visa holder’s unmarried minor children to the United States. Like the K2 visa, the K4 visa mirrors the benefits of its parent category. Therefore, if a K3 visa is issued with a validity of 2 years (which has become the common practice), then the K4 will likely be issued with the same validity period. The K4 visa is also a multiple entry visa just like the K3.

The K3 visa category was created at a time when it was taking nearly three years to process regular I-130 visa applications for foreign spouses. It was created with the idea of providing an expedited non-immigrant visa alternative so that bi-national families could be reunited quickly. As the processing time for the I-130 has decreased, so too has the need for the K3.

For those who travel to the United States on a K3 or K4 visa, eventually the issue of adjustment of status will arise. As the K3 and K4 are non-immigrant visas, the holders must apply for a “green card” before being allowed to remain in the USA. K4 beneficiaries can “piggyback” their application for adjustment on their K3 parent’s application.

As stated previously, for most people the K3 visa, and therefore its K4 counterpart, is generally not the most optimum visa because it takes longer to process when compared to the K1 and it does not confer Permanent Residence as the CR1 or IR1 visa does. However, the K3 has its strategic benefits because it can allow the couple the opportunity to have more control over their case’s adjudication, because the statute specifies that the interview forum is based upon the location of the underlying marriage.

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8th September 2009

US Visa Thailand: The L1 Visa

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An L1 Visa is a travel document which is used to enter the United States of America for the express purpose of working in lawful L1 visa status. The visa categorized as L1 is a non-immigrant visa. The visa is valid for a short amount of time when compared to longer term United States visas, usually L1 visas are granted with a validity of 1-3 years.

L1 visas are statutorily intended to be used by the employees and executives of companies and business entities with an international presence. Generally, these entities have offices in countries abroad and in the United States. Some companies with no presence in the United States of America seek to set up a business presence in that jurisdiction while also maintaining a business presence in the home country. L1 visas were created for foreign employees to transfer to the company’s United States office after having been employed with the company’s foreign office for a minimum of at least one year prior to being approved for  L1 visa status. The office in the United States of America must be the direct owner of the US company (parent company relationship), subsidiary to the US company (child company relationship), or an affiliate of the US company (sister company relationship). The major factor in determining if two entities meet the L1 criteria has to do with a “commonality of shareholders.” This means that the two companies must be substantially intertwined from an ownership perspective.

There are two subcategories of the L1 visa. The L1A visa and the L1B visa.

L1A visas are reserved for for Managers and Executives.  The term “Manager” means one who oversees the day-to-day operations of the company or organization. Usually, Managers either supervise the endeavors of other subordinate managers or specialists, or else they oversee important tasks within the corporation. As a rule, a manager is one who has a great deal of authority with regard to routine operational issues.

Those employees who are considered “Executives” are tasked with providing leadership to the management of the company or of a significant division within the corporate hierarchy. Managers set company policy as well as long term goals and have a great deal of autonomy to make decisions regarding the direction of the company. They function with little or no scrutiny from supervisors.

L1B visas are granted to those with specialized knowledge of the company’s business or the inner workings of the company itself. The specialized knowledge denoted in this category is company specific, meaning that an L1B visa holder should be intimately aware of issues relevant to the overseas entity specifically.

A major concern of US immigration authorities is the, not unfounded, suspicion that some companies are changing their corporate structure in order to obtain visa benefits for their executives, managers, and specialists. This is of particular concern with regard to small companies. Readers should note that it is never advisable to make business decisions solely for the purpose of obtaining Immigration benefits as doing so could bring up issues of immigration fraud.

Note: The L1 visa is a dual intent visa, so even though the visa is for non-immigrants it is possible that the visa holder could eventually adjust status in the United States and obtain lawful permanent residence.

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6th September 2009

For those entering the United States of America on a non-immigrant visa, there is generally a requirement that the entrant have non-immigrant intent. This means that the person entering the country must intend to simply remain on a temporary basis and not have the intention to reside in the United States permanently. United States Visas that require non-immigrant intent include the US Tourist Visa, the F1 Student Visa, and the J1 Exchange Visitor Visa. For each of these categories, the prospective entrant could be denied access to the United States either by visa denial or entry denial at the United States Embassy in Bangkok or the port of entry in the USA. Due to the risk of visa denial or entry denial, it is always recommended to apply for a visa that comports to the applicant’s true intentions.

Conversely, it may be unwise to apply for an immigrant visa if the parties true intentions do not actually involve residing in the United States. In this situation, the issue of intent is somewhat more fluid, but it is still advisable that the parties have a bona fide intention to reside in the USA.

With both of these issues in mind, there is something of a “middle path,” with regard to United States Immigration. This middle path is the doctrine of dual intent. This doctrine is a legal concept that deals with the fact that there are some cases where a US Visa must permit foreign nationals to be present temporarily in the United States of America in legal status and still have immigrant intent. The doctrine was promulgated due to practical necessity as there are situations in which aliens come to live and work in the USA on temporary visas, but they themselves wish to eventually obtain lawful permanent residence. United States Immigration authorities and experts have come to recognize that there are certain situations where this seemingly paradoxical situation must be accepted and, to a certain extent, encouraged.

An example of a commonly sought visa category in Thailand, is the K1 fiance visa. The K1 is a non-immigrant visa, but the alien entering the US on this visa is generally doing so in order to: reunite with their fiance(e), marry, and adjust status to permanent residence.  Therefore, the K1 visa is essentially a dual intent visa as it only allows for a 30 day temporary stay, but provides the opportunity to acquire US permanent residence.

To some extent, the K3 visa is a dual intent travel document as it is technically a non-immigrant visa, but once in the United States, the visa holder must eventually adjust status as the K3 does not confer lawful permanent residence. Usage of the K3 has declined in recent years as visa processing times have decreased for immigrant visas and increased slightly for K3 visas.

L1 visas as well as H1-B work visas are further examples of temporary visas which allow for dual intent. Although, these categories are employment based visas.

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