Continuing absurdity - “non-immigrant intent” for travelers to the U.S.
October 19, 2021
One of the oddities of U.S. immigration law is section 214(b) of the INA (Immigrant And Nationality Act) which states, simply, that every foreigner applying to enter the U.S. is presumed to be an “immigrant” (i.e. someone planning on moving to the USA permanently) unless they can establish (i.e. prove) that they’re not. A failure to prove they’re not (or, using the language of regulations – to establish that they have a residence in a foreign country which they have “no intention of abandoning”), means they are not permitted to enter the United States.
The absurdity of this rule is immediately obvious – many (if not most?) foreign students study either plan to, or at least don’t rule out the possibility of, staying in the U.S. post-graduation. The U.S. is a country of immigrants after all, and was largely populated by various waves of immigrants Nevertheless, if these students give any inkling that they may intend to (legally) stay permanently should the opportunity arise, a consular officer is obligated to deny their visa.
This issue came up recently with a foreign student client who had initially entered the USA to study physics. After graduating with a master’s degree in physics, she decided to switch to study for a law degree. She was accepted to a prestigious law school in the U.S., and could have stayed in the U.S. after her physics degree to start law school. The only snag was the following – she wanted to return to her home country to visit her ailing grandmother and once she departed the USA, she needed a new visa to return. This required her to interview with the US embassy in her home country. Unfortunately, this interview did not go according to plan. The consular officer interviewing her asserted that it appeared that this client had been in the USA “too long” already (having studied here for 5 years), and denied her the student visa on the basis that she hadn’t established that she hadn’t abandoned her foreign country residence. The irony was that the student in question actually had no intention of staying in the USA, and was planning on returning to her home country – she just felt that a U.S. law degree would get her a better job once back. So due to a consular officer’s arbitrary decision as to how long was “too long”, the U.S. lost out on the $200k she was planning on paying in tuition, and she was essentially barred from re-entering the USA. In the end, the USA’s loss was Canada’s gain – she simply went to study in Canada instead.
When clients ask why U.S. immigration law is full of these nonsensical anomalies, our response is generally that the law is frozen in time in 1996 when the last large immigration bill was passed in congress. Since then there has been almost no movement on immigration issues in spite of countless attempts to pass legislation. So we’re left with a series of laws that perhaps at one time made sense, but now no longer do, with no clear end in sight. Until then, the U.S. will continue to implement policies that keep out the very kind of immigrants that our neighbors welcome with open arms.
