Before applying for the EB-5 Immigrant Investor Program, it’s important to understand what “immigrant intent” means. In U.S. immigration law, this term refers to the desire to live in the U.S. permanently.

The United States Citizenship and Immigration Services (USCIS) uses specific rules to determine immigrant intent, especially for those seeking to adjust their status to permanent residents through the EB-5 program.

These rules might seem simple, but getting them wrong can lead to the denial of your Green Card application, the revocation of your current visa, and future issues with obtaining a U.S. visa. In this article, we’ll talk about immigrant intent and its impact on EB-5 investors.

Understanding Immigrant Intent

Immigrant intent is crucial for non-immigrant visa applications, where applicants need to show they plan to stay in the U.S. only temporarily for a specific reason. However, sometimes people who enter the U.S. on non-immigrant visas decide they want to stay permanently due to personal reasons, business opportunities, or other factors.

When this happens, U.S. immigration authorities may question if the person originally intended to become a permanent resident when they applied for their non-immigrant visa. If it’s found that the person was dishonest about their intent, they could face serious consequences, including visa denial and future bans from entering the U.S.

Single vs. Dual Intent Visas

To understand immigrant intent better, we need to look at the two main types of U.S. non-immigrant visas: single-intent and dual-intent visas.

Single-intent visas grant individuals entry to the U.S. for a temporary purpose, at the end of which they must leave the U.S. Examples include B-2 tourist and F-1 student visas. B-2 tourist visa holders must depart the U.S. at the end of their visit, while F-1 student visa holders usually must leave within 60 days of completing their studies unless they change their status.

Dual-intent visas, on the other hand, allow more flexibility. Dual-intent visa holders can apply for permanent residence status while holding a non-immigrant visa. Examples include H-1B, E-2, and L-1 visas.

Single-intent visa applicants must prove they have no immigrant intent during their application and may be subject to the 90-day rule if they decide to adjust their status in the U.S. Dual-intent visa holders have no such restrictions. Because of this, most foreign nationals who qualify prefer dual-intent visas to avoid issues of immigrant intent if they decide to switch to an immigrant route such as the EB-5 visa.

The 90-Day Rule

Determining intent can be subjective and challenging, so U.S. immigration authorities have long relied on the “90-day rule” to evaluate a person’s intentions regarding immigration.

The 90-day rule presumes that if someone applies for permanent residency within 90 days of entering the U.S. on a non-immigrant visa, they had immigrant intent from the start. If they apply after 90 days, they are generally not assumed to have had this intent.

However, it’s important to note that this rule is not a law but a guideline, and its application varies between two key immigration agencies: the U.S. Department of State (DOS) and the United States Citizenship and Immigration Services (USCIS). The DOS oversees immigration matters at U.S. consulates abroad, while USCIS handles immigration within the U.S.

The DOS introduced the 90-day rule in 2017 and still uses it. In contrast, USCIS stopped using the rule in 2021 and now applies the “reasonable person” standard. This standard finds fraud or willful misrepresentation if there is evidence that a reasonable person would believe shows intent to deceive to obtain a visa. This could involve false statements in writing, orally, or by other means.

Practically, this means that people applying for a visa at a U.S. consulate abroad will be evaluated for fraud using the 90-day rule. Those already in the U.S. on a non-immigrant visa and applying for permanent residency will be assessed by USCIS under the broader “reasonable person” standard.

How Does Immigrant Intent Affect EB-5 Investors?

Foreign investors considering switching to the EB-5 route in the U.S. must understand that timing can significantly impact their Green Card application.

While USCIS does not strictly adhere to the 90-day rule, it can consider this rule when evaluating a case. They agency can also find an applicant inadmissible for misrepresentation outside this window if evidence supports such a finding.

Under both the 90-day rule and the broader “reasonable person” standard, the burden of proof lies with the EB-5 applicant. They must demonstrate that they did not have immigration intent when they applied for their original non-immigrant visa. This may involve explaining changes in circumstances that led to the decision to pursue permanent residency and providing evidence of maintaining ties to their home country during their initial visa application.

EB5AN Offers Guidance on EB-5 Applications

Given these complexities, it is highly recommended that individuals currently in the U.S. on a non-immigrant visa consult with an experienced immigration attorney and EB-5 visa experts before applying for permanent residency, regardless of whether 90 days have passed since their entry into the U.S. This step ensures that their application for a Green Card via the EB-5 program encounters no issues related to immigrant intent.

EB5AN offers professional guidance to EB-5 investors. We’ve helped over 2,300 families from more than 60 countries relocate to the U.S as lawful permanent residents. Our team has 10+ years of experience and offers clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.

To learn more about the EB-5 program or to explore your U.S. immigration options in general, book a consultation call with our expert team today.