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- Thread starter Nathang
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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.
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.