here is other info related to INTENT posted in past by a lawyer one should read according to his her situation
Issues of Intent:
How Does USCIS Determine
What’s In Your Head?
In order to obtain certain immigration benefits, applicants must
demonstrate to USCIS that they have certain intentions. A person’s
intentions are internal and can only be ascertained through analysis of
the person’s actions. There three major contexts in which USCIS requires a
person to have a certain intent: (1) in order to gain admission to the
United States in any nonimmigrant status besides H or L, the applicant
must have nonimmigrant intent; (2) in order to be granted permanent
resident status based on employment, the alien must intend to continue
working indefinitely for the employer that filed his I-140 petition; and
(3) in order to be naturalized, an alien must show that he intended to
maintain his residence in the United States.
Nonimmigrant Intent
In 1976, a landmark court case called Seihoon v. Levy clearly set the
boundaries of the INS in determining the intent of individuals. Because
the INS won the case, INS officers cite it constantly to demonstrate how
intent can be determined. If the INS had lost the case, INS officers would
say that the decision was limited to the person who brought the case. In
any case, Seihoon v. Levy was brought before a U.S. District Court on
appeal by an alien who contended that the INS had improperly denied his
application for a change of status from Visitor status to Student status.
The INS had originally denied his petition because while he entered the
U.S. as a visitor, he immediately enrolled in a U.S. university and sought
to change his status to student status. INS decided that because the alien
had decided so rapidly to change from Visitor to Student status, he had
misrepresented his intention to enter the U.S. as a visitor only. INS
determined that his true intent, when entering as a “visitor,” was to
enroll in a U.S. school.
The District Court decided that the INS had acted correctly when it denied
the alien’s application for change of status to Student status. The
Court’s reasoning was that the “rapid course of events” following the
alien’s entry to the U.S. on Visitor status was evidence of his intent
upon entry. While the Court recognized that it is impossible for the INS
to read people’s minds in order to determine their intentions, it is
certainly possible for the INS to observe the behavior that people exhibit
after they express an intention. They can then compare people’s behavior
to their expressed intentions, to see if it corresponds. If the “rapid
course of events” following a person’s statement of intent seems to
indicate that the person intended something other than what he or she
expressed to the INS, then the consequences can be serious.
In the case of Seihoon v. Levy, the alien’s change of status was denied
and he was not able to enroll in university classes in the U.S. at that
time. The concept of nonimmigrant intent is applied to all nonimmigrant
statuses except for H and L, which are exempt by law from this
requirement. For example, if a B-2 visitor enters the U.S. and files a
permanent residency application a few weeks later, USCIS is likely to find
that the alien misrepresented his intent upon entry to the United States
to enter only as a “visitor.”
The concept of “intent” is borrowed from Seihoon v. Levy and applied to
many other immigration contexts in which the alien is required to have a
certain intent.
Intent to Work for the I-140 or I-360 Petitioner
Employment-based nonimmigrant visa holders can obtain permanent residence
(PR) either by Consular Processing or by Adjustment of Status. If Consular
Processing is chosen, the alien must present a letter of employment at the
time of the Consulate interview abroad, stating that upon receiving of PR
status, he or she intends to work indefinitely for the petitioning
employer on the underlying I-140 petition. This statement is required
based on the underlying assumption that the alien is entering the U.S.
primarily to work in an occupation for which there is a shortage of U.S.
workers. Unfortunately intent is a difficult thing to document or to
prove.
For beneficiaries of I-360 Religious Worker Petitions, there is an
additional intent requirement. Not only must the beneficiary intend, at
the time of the consulate interview or adjustment of status to work for
the I-360 petitioner after he is granted permanent residence; he must also
be entering the U.S. "solely" to carry on religious work in the
denomination that sponsored the I-360. This means that he must intend to
work full time for the I-360 petitioner and that he must not intend to
engage in additional, supplemental employment apart from his religious
work.
If USCIS believes that a permanent resident received a green card
following a Consular Processing interview at which he or she
misrepresented his/her intention to continue working for the petitioning
employer, or to work "solely" as a religious worker in the I-360 context,
then he or she may be guilty of making a material misrepresentation
(fraud) and may never be able to become a naturalized citizen based on
that green card. In addition, USCIS routinely deports individuals who make
such misrepresentations.
There are two ways in which the alien’s intent at the time of the
Consulate interview may come into question. The first would be if someone
reported the alien’s misrepresentation to the USCIS. The tip-off could
come from an aggrieved employer who supported the alien’s immigration
process in anticipation of a continued employment; or it could come from a
fellow employee who is aware of the situation. It could also come from an
angry ex-boyfriend or girlfriend. Anyone can call USCIS to report that
someone has broken immigration laws. Upon receiving a tip-off, USCIS would
have to launch an investigation. The other way in which the alien’s
misrepresentation might be discovered would be at the time of his or her
Naturalization interview. The USCIS officer conducting the interview would
query the alien on his or her actions following receipt of permanent
status. If at that time it came out that the alien changed employers of
his/her own accord immediately following receipt of permanent resident
status, he or she could be deemed ineligible for naturalization.
In order to determine whether the alien truthfully represented his or her
intent to remain with his or her petitioning U.S. employer after receiving
the green card, the USCIS uses the standard created by Seihoon v. Levy.
That is, USCIS examines the “rapid course of events” following the alien’s
receipt of his or her green card. The Department of State has reduced this
rule to a 30-60-90 day formula which USCIS generally follows. If an alien
ends employment with the petitioning employer within 30 days of receiving
his/her green card, then it is highly likely that USCIS will decide that
the alien’s intent at the Consulate interview was not, as he/she stated,
to remain with the petitioning employer indefinitely. After 60 days have
passed, it is less likely (but still risky) that USCIS will determine that
the alien lied about his/her intent at the Consulate interview. And after
90 days, it is highly unlikely that USCIS will have a problem with the
alien’s change of employment.
Maintaining Residence for Naturalization Purposes
An applicant for naturalization must prove that he has maintained his
residence in the United States for a certain statutory period, usually
five years prior to the filing of his naturalization application. A
person’s residence is where his heart is; and a person is not always
physically present at his residence. Therefore a permanent resident may
travel abroad, even frequently, and still maintain his residence in the
United States. The concept of residence is than a question of where the
person intends his home to be.
In determining whether an alien has maintained his residence in the U.S.,
USCIS looks at the following factors:
* amount of time spent in the U.S.
* the reasons for departures from the U.S.
* whether the termination date for the visit(s) abroad were fixed by some
early event or whether they could have continued indefinitely
* whether during the alien’s trip(s) abroad, his place of employment
and/or actual home remained in the U.S.
* whether his family remained in the U.S.
USCIS must also analyze the alien’s primary purpose in departing the U.S.
to determine whether the alien’s intent in leaving was to abandon his
permanent resident status.
(Note: Naturalization is not the only context in which the issue of
“abandonment of residence” arises. A permanent resident who has been out
of the U.S. for over six months, especially if he has not obtained a
Re-entry Permit, may be placed in removal proceedings by a Customs Officer
upon applying for admission at a U.S. port of entry).
The intent requirement for maintenance of residence is not heavily
dependent on the concept of a “rapid sequence of events” described in
Seihoon v. Levy. Rather, the USCIS officer interviewing the naturalization
applicant must look at the whole picture presented by the applicant,
including the reasons for his departures and the extent of his ties to the
United States.
