Asked in Immigration Law for District of Columbia

Q: Will I be able to re-enter the US while on my F1 visa while an i-140 is pending?

Submitted my NIW petition in December and went back to my home country for christmas break. Just realizing that I might encounter the "demonstrating immigrant intent" while my I-140 is pending. Will a CBP officer prevent me from re-entering and if he asks about immigrant intent, what should I answer? My category is also not current. Thank you

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3 Lawyer Answers
Ghenadie Rusu
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  • Immigration Law Lawyer
  • New York, NY

A: Under existing U.S. immigration law, an F1 visa is classified as a non-immigrant visa. The key aspect of the F1 visa, and indeed all non-immigrant visas, is that they are intended for individuals who plan to stay in the U.S. temporarily and have no intention of abandoning their residence in their home country.

In contrast, immigrant visas are for individuals who intend to reside permanently in the U.S. This category includes visas for family reunification, employment-based immigration, and other permanent residency pathways.

When re-entering the U.S. on an F1 or any other non-immigrant visa, especially after demonstrating potential immigrant intent (such as by filing an NIW I-140 petition), it's essential to be aware that admission into the U.S. is at the discretion of the Customs and Border Protection (CBP) officer at the port of entry. You have to convince the CBP officer of your strong ties to your home country and your intent to return there upon completion of your studies or at the end of your visa period. I advise my clients to explain that a potential immigrant status is an incentive to comply with the non-immigrant status requirements. As long as you demonstrate your intent to comply with your F1 visa requirements you should be fine.

James L. Arrasmith
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  • Immigration Law Lawyer
  • Sacramento, CA

A: Re-entering the U.S. on an F1 visa while an I-140 is pending can be complex due to the dual intent involved. Your F1 visa is a nonimmigrant visa, which means you must demonstrate nonimmigrant intent when entering the U.S. However, filing an I-140 (Immigrant Petition for Alien Worker) can be seen as an expression of immigrant intent, which could potentially conflict with the requirements of your F1 status.

If a Customs and Border Protection (CBP) officer asks about your immigrant intent during re-entry, it's important to be honest. Explain that you are currently in the U.S. on an F1 visa for your studies and that your long-term plans depend on various factors, including the outcome of your I-140 petition. Be prepared to show that you are currently enrolled in your educational program and intend to comply with the terms of your F1 visa.

It's also important to note that the fact that your visa category is not current may work in your favor, as it indicates that you are not immediately planning to adjust status to permanent resident. This could help in demonstrating your nonimmigrant intent at this time.

Keep in mind that each case is unique, and the decision to admit you back into the U.S. is at the discretion of the CBP officer. It's advisable to carry documentation supporting your current student status and your ties to your home country, which can help demonstrate your intent to return after your studies.

Lastly, consider consulting with an immigration attorney for personalized advice, as they can provide guidance based on the specifics of your situation.

Brian J. Reilly
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  • Immigration Law Lawyer
  • Raleigh, NC
  • Licensed in District of Columbia

A: The most important thing to keep in mind is to tell the CBP the truth. If are still engaged in course work, it is easier to explain you intend to finish your studies. If you are on OPT or extended STEM OPT you should say you understand your obligation to leave at its completion; that the NIW I-140 is aspirational, not guaranteed; and that you may have long wait for the quota while living abroad. Being denied admission after responding candidly is a much better outcome than being found to have attempted entry by fraud and facing permanent exclusion. Nothing will set a CBP officer's fraud radar quicker than being vague and evasive.

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