Comment by timr
15 hours ago
I'm not sure which statute you're talking about. The one establishing adjustment of status as a process was the immigration act of 1952; 8 USC 1255:
https://codes.findlaw.com/us/title-8-aliens-and-nationality/...
With the caveat that I'm absolutely not an expert in this area and have no clear idea what changes have been made since, it's still highly informative to read this section and the carve-outs that were made at the time.
My current understanding is that the creation of "dual-status" visas (immigration act of 1990) paved the way for using the adjustment-of-status process established 8 USC 1255 for those particular visas (like H1B), and thus makes those visas less vulnerable to a change of interpretation by the executive branch. Contrast to, say, a regular tourist visa.
Yes, I'm asking what carveout for dual-intent visas you're aware of in the Immigration and Nationality Act. The section on adjustment of status, INA 245, doesn't mention dual-intent at all.
Dual intent didn't exist when INA 245 (= 8 USC 1255) was drafted.
My current understanding is that the "carveout", as it were, is the creation of the notion of dual-status itself, in the 1990 immigration act. This made H1b visas both immigrant and non-immigrant visas, and thus eligible for INA 245.
For example, a law firm's opinion:
> However, the USCIS memo suggests the new policy may be less applicable to dual-intent nonimmigrant categories (e.g., H-1B, L-1 and their H-4 and L-2 dependents), where applying for adjustment of status is not inconsistent with maintaining status as a temporary visa holder. Dual intent means that a person can legally intend to reside temporarily in the United States for purposes of their temporary H-1B or L-1 work visa and simultaneously intend to apply for a future permanent residence status. Dual intent is a well-established concept in business immigration law, with many decades of support in federal law and regulation. The USCIS policy memo does caution that maintaining H-1B or L-1 dual-intent status alone is not sufficient, on its own, to warrant a favorable exercise of discretion. The USCIS officer must still weigh whether or not to exercise discretion in approving the adjustment application, but adjustment applications have always been discretionary.
https://www.quarles.com/newsroom/publications/top-5-things-t...