Preconceived Intent, Visa Fraud and Other Things People Do Without Knowing It

One of the most difficult aspects of legally entering the U.S. is the concept of “intent”. In addition to the fact that we cannot read people’s minds, the legal concept of “intent” has different meanings at different times in the process.

When a person applies for a visa at the U.S. Consulate abroad, he or she is indicating intent to enter the U.S. to do a specific thing for a specific period of time. For example, a B-2 visitor intends to visit the U.S. to go to Disneyland, visit family and friends or simply be a tourist. An F-1 student enters the U.S. to attend school. On this basis, the U.S. Consulate issues the visa and allows the individual to travel to the U.S. and request admission.

Once at the airport or other port of entry, the individual hands the inspecting officer his or her passport with the appropriate visa in it. At this point, without saying a word, the individual is legally stating his or her intent to enter the U.S. in that particular visa category. More importantly, the law assumes the individual will enter the U.S. to do precisely what that visa allows and no more.

What makes things confusing is the fact that individuals who have been legally admitted to the U.S. also have the right to change or adjust their status after they have been admitted. However, if the individual attempts to change or adjust status too soon after the entry, the government will assume that the person committed “preconceived intent” which is a fraudulent admission to the U.S. In other words, the person was admitted in one category but secretly had the intent to quickly change or adjust status to another category.

We see this situation most often with B-2 visitors who enter the U.S. and then quickly attempt to obtain a change of status to be a foreign student. The Immigration Service takes the position that if the individual wanted to be a foreign student they should have filed for and obtained an F-1 visa at the U.S. Consulate and used that visa to gain admission. They will then send the prospective student back to their country to try to obtain that visa. Unfortunately, the U.S. Consulate will not be happy that the person used a visitor’s visa to enter the U.S. to attempt the change of status to F-1 status and is likely to refuse to issue the second visa.

The other scenario where this issue is common is individuals who enter the U.S. in one category, usually a visitor or a student, and then marry a U.S. citizen and apply for permanent residence through adjustment of status. Again, the Immigration Service views this as preconceived intent and fraud since the person stated at the airport they intended to be a visitor when they really intended to marry a U.S. citizen and obtain a green card.

Many years ago, the State Department addressed this issue by creating the “30-60-90” rule which eventually evolved into the “60-day rule”. This rule states that an individual may enter the U.S. in one visa category and also may change their mind at a later date as long as there is no indication of the intent to change or adjust status for at least 60 days after the last entry. Interestingly, the Immigration Service is much stricter in a change of status case from one non-immigrant category to another non-immigrant category as opposed to an adjustment of status case from non-immigrant to immigrant. In adjustment of status cases, the Immigration Service uses the preconceived intent rule as only one factor to be considered in their discretion in deciding whether or not to grant the adjustment of status. In non-immigrant and change of status cases the applicant must strictly follow the 60-day rule and should not take action during the initial 60 days after admission which indicates intent to change status.

If you or someone you know is contemplating traveling out of the U.S. in the future as a non-immigrant and then returning to the U.S. in the same category but with the intention of changing or adjusting status to another category, you must be extremely careful and strictly follow the 60-day rule. Otherwise, the change or adjustment of status will be denied and we must then deal with the U.S. Consulate abroad.


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