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.)

In absence of preconceived intent or visa fraud issues, an F-1 student may legally apply for the immigration petition (I-140 or I-130) and adjustment of status in the US .

4. The Difference Between Immigrant Intent and Immigrant Desire

In the case Brownell v. Carija , the court held that an alien who originally entered under a non-immigrant visa can have a "desire or purpose or intent" to remain in the U.S. if the law affords him such an opportunity. Furthermore, a non-immigrant visa applicant's desire to remain must be distinguished from his or her intent to remain. In the case Lauvick v. INS , the 9th circuit judge reversed the denial of E-2 for an applicant who expressed desire to immigrate but did not intend to immigrate if not permitted. In a 1975 case, the Board of Immigration Appeals held that a foreign student's attempt to adjust status did not automatically make him deportable and cited a line of holdings to the effect that "a desire to remain in this country permanently in accordance with the law, should the opportunity to so present itself, is not necessarily inconsistent with lawful nonimmigrant status." These cases that differentiate desire from intent have never been explicitly over-ruled, and immigration attorneys still cite them as classic sources for the doctrine of "justifiable intent."

Therefore, the immigrant intent is arguably the intent to remain in the US without lawful permission after his or her status expires whereas the immigrant desire is to stay in the US if the law affords him to do so.

5. Maintain, Terminate, and Lose F-1 Status

An F-1 student is admitted for duration of status. The student is considered to be maintaining his/her status if s/he is making normal progress toward completing a course of study. According to this provision, "making normal progress toward completing a course of studies" is the only thing required to maintain F-1 status as stipulated by immigration law. Based on this understanding, F-1 students who file the I-140 do not fail to maintain their F-1 status simply because of this filing.

8 CFR 214.1 (h) provides the circumstances that non-immigrant status be terminated: "[w]ithin the period of initial admission or extension of stay, the non-immigrant status of an alien shall be terminated by the revocation of a waiver authorized on his or her behalf under section 21 (d) (3) or (4) of the Act, by the introduction of a private bill to confer permanent resident on such alien; or, pursuant to notification in the Federal Register, on the basis of national security, diplomatic, or public safety reasons." Note that filing an LPR petition is not listed as a circumstance that can lead to the termination of non-immigrant status.

According to 8 C.F. R. section 214.2 (f)5 f(6), if a student is employed without authorization, is not pursuing a full course of study, transfers schools without permission, or fails to complete a full course of study in time and is ineligible for a program extension, s/he is out of status and subject to deportation. Under this provision, filing an I-140 or I-485 is not listed as a cause for being "out of status."

Some attorneys may argue the laws require the F-1 student to have non-immigrant intent to maintain his / her status. However, some legal experts observe that such "nonimmigrant intent" is inconsistent from a historic viewpoint and illogical from the spirit of law. If F students are allowed to have the intent to switch to H status, and H status allows intent to switch to LPR status, then isn't the desire to switch from F status to H status a strong indication that an alien intends to stay in the US and is therefore not eligible for the F status? Put differently, if F aliens can freely change to H status and H aliens can freely change to LPR status, then logically speaking F aliens should be allowed to freely change to LPR status.

Moreover, if assuming that the USCIS interprets the non-immigrant intent broadly to cover the maintenance of F-1 status, an F-1 status holder who has filed an immigration petition may argue that his filing of I-140 is a "law-afforded" action to test whether he can lawfully remain in the US permanently and his legitimate desire (not intent) as demonstrated by the I-140 filing therefore should not negatively impact his F-1 status quo. Since the first desire (filing the I-140) is authorized by law, a reiteration of the desire (filing the I-485) should invite nothing more than a second authorization.

Therefore, it is reasonable to conclude that "nonimmigrant intent" can be interpreted differently under different scenarios and is applied differently for applying for F-1 visa outside the US and for maintaining F-1 status while in the US .

6. Some Practice Tips

Filing an I-140, immigrant petition, and/or and I-485, application for permanent residence, shows specific "immigrant intent." These actions show specific immigrant intent and make it very hard if not impossible to apply F-1 visa, make an entry into the US with F-1 visa or change into F-1 status in the future from another status . Please note that the law does not treat the filing of I-140 and I-485 differently with regard to finding "immigrant intent." Some attorneys may hold the opinion that filing an I-485 marks an unequivocal and affirmative action to perform or realize the immigrant intent expressed in the I-140 filing. However, some attorneys may argue that filing an I-140 only expresses a desire to seek a law-afforded measure to stay and filing an I-485 is only to seek a derivative benefit of I-140 or to naturally extend a justified desire. As you can see, law can be read and interpreted literally or liberally. The enforcement of law can be affected by the change of circumstances and the discretionary power of an adjudicator. To optimize your chance and minimize your risk, we provide these practice tips for different case scenarios.

a) Travel Abroad: If he/she travels abroad without the benefit of an advance parole, there will be two likely consequences: (1) the individual will be deemed to have abandoned his/her application for permanent residence (I-485); and (2) the individual will have a very hard time to get F-1 visa and probably not be permitted to enter the United States as an F student because he/she has demonstrated "immigrant intent" by virtue of filing an I-140 petition.

b) Applying OPT: The F-1 individual who has applied for immigrant status may apply for F-1 OPT and usually should get OPT. However, the filing of the I-140 and/or I-485 may make him/her ineligible to receive the F-1 OPT/EAD if the school becomes aware that he/she filed the I-140 and/or I-485. Even if his/her OPT/EAD application is denied, he/she would not lose his/her F-1 status so long as he/she continues to take a full time level of course work since there is no triggering event for the USCIS to invalidate the F-1 status as a matter of practices.

c) Maintaining F-1 status: The filing of I-140 / I-485 places this individual in a gray area with regard to his/her underlying status in the United States . If the F-1 student remains in the United States and continues his/her full time studies and does not travel abroad, does not apply for a new F-1 visa abroad, and/or does not seek to extend or transfer the Form I-20 (Certificate for Eligibility for Student Status), he/she should be fine because there is normally no circumstance where he/she would be asked about the disclosure of filing the I-140 and/or I-485. If, however, in the unlikely situations that the school/consular officer does ask the individual whether he/she filed an I-140 and/or I-485, he/she will have to disclose that fact. If this happens, it is highly unlikely that he/she will be able to obtain an EAD based on OPT or extend or transfer the Form I-20.

d) Applying H-1: The application of I-140 / I-485 will not affect in any way, the F-1 student's application of H-1 since the H-1 allows a dual intent and there is no need to disclose about the filing of I-140 or I-485 unless the I-140 was sponsored by the H-1B employer. Generally, there should not be a detrimental consequence if the I-140 Principal who is in F-1 status files a Form I-129 Nonimmigrant Petition to change his/her status to H-1B. In addition, there should not be a detrimental consequence to the I-140 Derivative Spouse and he/she can request to change to H-1B or H-4 status. Moreover, there is no detrimental consequence to the I-140 Derivative Spouse when changing to F-1 because the I-140 petition is not his/her petition and therefore he/she would not have immigrant intent.

e) Applying I-485 and EAD: If the F-1 student will not be able to get OPT or H-1 because of lack of sponsorship from an employer without working for the employer first as a matter of practical reasons, then he or she, if eligible, should apply for the I-485 (including any nonimmigrant dependents) with the I-140 in order to obtain the EAD so that the F-1 may work upon his graduation. However, the F-1 student is in the I-485 pending status and will have to leave the US if the I-140 or I-485 is denied by the USCIS.

f) Applying Advance Parole: If the F-1 student would like to travel abroad while his I-140 is pending, we strongly suggest that he or she apply for the I-485 and advance parole document, which will allow the applicant to travel in and out of the United States while the I-140 is pending. Please note that the only way to be eligible for the advance parole, in this case, is to file the I-485. If the I-485 is not filed at this time and the visa numbers retrogress to the point where the numbers are no longer current, then the F-1 student will not be able to file the I-485 or any applications for derivative benefits, including employment authorization and advance parole. This means that if the person leaves the United States , he/she may not be permitted to reenter in F-1 status because he/she has shown immigrant intent. In the current visa retrogression situations for the people born in China and India, the filing of I-485 is not available until the visa number is available for his/her cases. With the current backlog, it will take a couple of years for visa numbers to become available again.

g) The status: Theory vs. Practices. Once the I-485 application is filed, the F-1/F-2 individual is placed in a gray area. On the one hand, some attorneys think that the person is no longer technically considered a "nonimmigrant" because he/she cannot in theory have dual intent. On the other hand, it may be argued that the non-immigrant intent is only required when the individual applies for a visa of F-1, an entry into the US as F-1, or change or extend his / her status to F-1. As a matter of practical consideration, the USCIS does not check whether the F-1 / F-2 individual applied I-140 / I-485, and there is no trigger event to invalidate the individual's F-1/F-2 status just because of the filing and denial of his/her I-140 / I-485.

In closing, if the Principal and Derivative remain in F-1/F-2 status and the I-140 is denied, he/she may encounter problems when: (1) traveling abroad and attempting to reenter in F-1/F-2 status, because he/she has expressed immigrant intent; (2) extending the I-20 or transferring to a different academic institution; and (3) obtaining an OPT if the school / university is aware of the filing of I-140 in some schools or universities.

Pursuing lawful permanent residence in the United States is always a difficult and challenging procedure due to the complexities of U.S. immigration laws and regulations. For this reason, it is highly recommended that you consult an experienced and qualified attorney prior to initiating any application for permanent residence to ensure that you, first and foremost, are eligible for such a classification and to ensure that your underlying status in the United States is always protected. If you have any questions about your status, please do not hesitate to contact our experienced and knowledgeable attorneys who are always happy to assist you. Finally, the memo is based on the legal authorities best available now and the USCIS' practices. However, as the immigration laws depend on the implementation and policies by the USCIS, the USCIS may change its policies and practices anytime in the future. This memo may not be construed as a legal advice to a particular situation and does not establish an attorney-client relationship.

For more information on F-1, please click on the following links:
Description
SEVIS
Application for an F-1 Visa
Obtaining an F-1 Status at the port of entry
Change into F-1 Status in the U.S.
Eligibility for change into F-1 Status in the U.S.
Maintaining F-1 Status
Change Name and Address
Transfer of School
Time limitation of F-1 Status
Extension of F-1 Status
Grace Period
F-1 Status reinstatement
Optional Practical Training (OPT)
Curricular Practical Training (CPT)
Change from F-1 Status to H-1B
Change from F-1 Status to immigrant status
Spouse and Children of F-1
Attorney and filing fees
Frequently Asked Questions and Answers
The Impact of I-140 Filing on F-1 Students
Memo: Be Aware of Abandonment of COS and AOS Applications