Comment by timr

14 hours ago

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.