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|Immigration and Nationality|
|Glossary of Common Immigration Terms
The following terms either have a specific meaning under U.S. immigration law or are commonly related to immigration in general. The descriptions below are meant to provide you with a general understanding of important concepts in U.S. immigration law. Please consult an immigration attorney to discuss specific questions and/or problems in your case.
The Immigration and Nationality Act (INA) section 214(b) provides that all individuals applying for a visa to enter the United States are presumed to be immigrants. Thus, an applicant for a nonimmigrant visa must be able to demonstrate his or her eligibility for nonimmigrant classification. For example, a nonimmigrant visa applicant may need to provide documentation showing ties to his or her home country (i.e., an intent to return home at the end of the period of authorized stay). 214(b) is a very common basis for visa refusal. It is distinguishable from a finding of inadmissibility, as the visa applicant may later reapply, providing additional documentation to overcome this presumption.
If you are applying for a nonimmigrant visa under a classification that permits dual intent, you are not required to overcome the presumption of immigrant intent. Under the immigration laws, you are considered to have the immediate intent of entering the United States to engage in activities under the terms of your nonimmigrant classification while holding the long term intent of becoming a lawful permanent resident. As a result, if you are allowed to hold dual intent (and are otherwise qualified for the classification), you will not be denied a visa solely because there is evidence of your having taken steps to become a lawful permanent resident.
INA section 212 provides for the circumstances under which you will likely be considered inadmissible to enter the United States. If you fall within one of these grounds of inadmissibility, it will mean that you are not permitted to enter the United States. Depending on your individual situation, you may be able to overcome inadmissibility through several different options (including a waiver or labor certification), or there may be no relief.
Consular non-reviewability is a long standing practice by the United States courts to refuse review of a consular officerís decision to issue or withhold a visa. Because of this practice, most decisions made by a consular officer regarding a visa application cannot be appealed.
Status v. Visa
Status and visa are often used interchangeably. However, the two represent distinct ideas. First, a visa is the travel document issued by the United States State Departmentís consular posts. This document, which is a stamp in your passport, allows you to enter the United States in a particular classification (e.g., H1B, L1, TN, E2, etc.). When you reach a port of entry, you present your visa and request entry to the United States. If you are permitted to enter, you will be issued a Form I-94, which notes your date of entry, classification and expiration date of your authorized period of stay.
Once you are in the United States, your obligation is to maintain your status, which generally means that you act consistently with the classification you were granted and either leave the United States or seek an extension or change of status (where permitted) on or before the expiration date on the Form I-94, not your visa. It is your Form I-94, not your visa, that guides your stay in the United States.
Unlawful presence generally begins to accrue when an alien stays in the United States beyond the period authorized by the Attorney General. For most individuals this means that if they do not leave the United States or do not file a valid request for an extension or change of status before the date on their Form I-94, they begin to accrue unlawful presence. If an alien accrues enough unlawful presence before leaving the United States, he or she will become inadmissible to enter the United States later.
If you have any questions on how these concepts affect your situation, please contact us.
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