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  • Article: What Is The Point Of Dual Intent IF You Must Still Show Temporary Intent? By Joseph P. Whalen

    What Is The Point Of Dual Intent IF You Must Still Show Temporary Intent?


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    Reprinted with permission.

    About The Author

    Joseph P. Whalen Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.
    238 Ontario Street | #6 | Buffalo, NY 14207
    Phone: (716) 604-4233(716) 604-4233 (cell) or (716) 768-6506(716) 768-6506 (land-line) E-mail: joseph.whalen774@gmail.com

    DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ILWlurker's Avatar
      ILWlurker -
      This "dual intent" problem is an ongoing one that results from failure to take into account 2 very old precedents. ANY nonimmigrant, and not just those addressed by statute, can have a bona fide "dual intent." Yes, even a B-2.

      This conclusion is clear from Matter of Hosseinpour, 15 I&N Dec. 191 (BIA) and the earlier INS decision, Matter of H-R-, 7 I&N Dec 651.

      An alien seeking nonimmigrant admission who, when seeking admission, intends in good faith to remain only so long as authorized by law, and to leave when required at the end of period of admission, satisfies the requirement to have a bona fide nonimmigrant intent. Maybe the individual would also like to become an LPR, if this option becomes available to the individual lawfully.

      According to both precedents, wanting to immigrant, if one can do so lawfully, does not warrant denial of nonimmigrant admission. Even as a B-2.

      Of course, the burden proving admissibility is quite high -- clearly and beyond doubt, according to Matter of Bett. So a B-2 might have a hard time proving that he or she intends to stay only if the law allows it. And the statute creates a presumption for some work-based categories.

      But if a B-2 does make a credible showing, the B-2 should be admitted. And if an L or H or whatnot were to say, in an unguarded moment, "Look, I'm staying, by hook or by crook, no matter what happens to my eventual adjustment application," I don't think the presumption of dual intent will help.
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