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.
