R-1 NONIMMIGRANT INTENT

Every alien applying for admission to the United States is presumed, under section 214(b) of the Immigration and Nationality Act, to possess immigrant intent unless he proves that he qualifies for a specific nonimmigrant category. In order to qualify for any nonimmigrant classification other than H or L, which are specifically exempted under regulation, the alien must prove that he intends to depart from the United States immediately upon the expiration of his status.

Some nonimmigrant classifications, such as B-1 visitors for business and B-2 visitors for pleasure, require the alien to prove that he has a foreign residence which he has no intention of abandoning. While this language is not included in the legal definition of R-1 status, all R-1 applicants are still subject to 214(b). The alien must be able to demonstrate that he does not intend to remain in the U.S. indefinitely. This is particularly true when aliens apply for an R-1 visa at a U.S. consulate abroad. Consular officers tend to give more scrutiny to the question of whether the applicant actually has nonimmigrant intent than do USCIS officers adjudicating R-1 petitions.

The issue of nonimmigrant intent is not usually a problem upon an alien’s first entry to the U.S. in R-1 status. However, if the alien files an I-360 petition for permanent resident status while in the U.S. in R-1 status, he clearly exhibits that he has immigrant, rather than nonimmigrant intent. On subsequent extensions of R-1 status filed through the service center, the alien may have problems. The form I-129 used to extend R-1 status asks specifically whether an immigrant petition has ever been filed on behalf of the alien. Failure to disclose the previously filed I-360 petition for permanent residence may result in a fraud charge that could make the alien removable from the U.S. But inclusion of the information could result in denial of the R-1 extension, leaving the alien out of status.

In most cases, USCIS will not deny an extension of R-1 status even if it is filed after an I-360 has been filed on the alien’s behalf. If the alien is a citizen of Canada, he can avoid the issue all together by applying for the R-1extension at a port of entry along the northern border, where no I-129 form is required. The issue of nonimmigrant intent is not likely to come up at all in that context. For nationals of all other countries, the most prudent course is to plan to file the I-360 petition a few months after entry to the U.S. in R-1 status, since the I-360 will likely be approved before three years have passed and an R-1 extension is required.