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Immigration intent is a foundational concept in U.S. immigration law that distinguishes between temporary and permanent pathways. Nonimmigrant visa categories require applicants to demonstrate intent to return to their home country, while immigrant visas are for those seeking permanent residence. This principle governs visa applications, status changes, and the legal requirements individuals must meet throughout their immigration journey.

Among nonimmigrant visa categories, only a select few permit “dual intent.” H-1B and L-1 visa explicitly allow holders to maintain their temporary status even while actively seeking a green card, providing crucial flexibility for foreign professionals navigating the transition from temporary to permanent residence. The O-1 visa, while not officially designated as such, is often considered a quasi-dual intent category.

This ambiguity originates in the regulations themselves. The U.S. Department of State’s Foreign Affairs Manual (FAM) governs how consular officers adjudicate visa applications. On its face, the FAM still incorporates the classic presumption of immigrant intent, stating that “an O-1 applicant is presumed to be an immigrant until they establish to your satisfaction that they are entitled to O-1 nonimmigrant status.” (9 FAM 402.13-10) It also states that an intent to remain temporarily in the U.S. is required for the O-1 visa classification.

In other words, O-1 applicants are expected to show that they intend to leave the U.S. after the expiration of their employment. However, just a few lines later, the same section of the FAM introduces an important clarification: O-1 applicants are not required to maintain a foreign residence, and dual intent is explicitly permitted. In fact, the FAM clearly states that “‘dual intent’ is permissible for O-1 visa holders.” (9 FAM 402.13-10 (U))

This internal contradiction highlights a common feature of U.S. immigration law: formal rules that appear strict but are filled with ambiguities and inconsistencies in practice. This opens the door for inconsistent enforcement by officers at consulates and ports of entry. Here, we discuss a few reasons why some O-1 applicants have encountered issues related to perceived immigrant intent:

First, not all consular or CBP officers are familiar with the nuances of the O-1 category. O-1 visas are relatively uncommon compared to other work-based classifications, and not every officer will fully understand the scope of its dual intent provisions. Second, visa adjudication standards have grown more stringent in recent years, and officers may be more cautious when reviewing any visa application that appears connected to a green card filing. In other words, while the law allows for dual intent, discretionary enforcement can still result in additional scrutiny or delays.

To be safe, O-1 visa applicants, especially those who have already filed or are preparing to file green card applications, should consider preparing documentation to demonstrate that their U.S. employment is still temporary in nature. At the same time, applicants may wish to politely reference the relevant section of the Foreign Affairs Manual, which states that dual intent is permissible for O-1 visa holders.

Ultimately, this is another example of how U.S. immigration law, despite appearing rigid on paper, often leaves critical questions open to interpretation. For visa holders navigating the transition from temporary to permanent status, understanding these nuances and preparing accordingly can make all the difference.