Re:Justice Dept files suit against Facebook for discriminati...
by rayiner on Thursday December 03, 2020 @07:36PM
(#25297529)
H-1B holders aren't "excluded from the rule requiring nonimmigrant visa holders to lack immigrant intent." 8 USC 1184(b), which you cite, says something quite different:
> (b) Presumption of status; written waiver
Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title.
This creates a rebuttable presumption that an alien has immigrant intent, and excludes H-1B holders from that presumption.
But the H-1B is still a non-immigrant visa. 8 USC 1101(a)(15) clearly distinguishes "immigrants" from "nonimmigrant aliens." An H-1B is classified as a "nonimmigrant alien." Subsection (H)(1)(b) still applies to those who will work "temporarily" in the U.S. H-1Bs are still governed by 8 USC 1184 ("admission of nonimmigrants") and not 8 USC 1181 ("admission of immigrants").
> "Dual intent" isn't an administrative fiction, its a term of art for the nonimmigrant visa categories excluded from the generally applicable requirement for having (and demonstrating) the absence of immigrant intent.
It's a term of art that refers to an administrative fiction. That fiction allows a visa that is by its terms a nonimmigrant visa for temporary workers to be treated in practice as the first step in the path to permanent immigration. The 1990 INA doesn't change that in substance--it merely excludes H-1Bs from a presumption to avoid blowing up the fiction. This is the result of H-1B being a statutory kludge in response to the executive branch's longstanding abuse of the H-1 visa created in the 1952 INA.
> (b) Presumption of status; written waiver Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title.
This creates a rebuttable presumption that an alien has immigrant intent, and excludes H-1B holders from that presumption.
But the H-1B is still a non-immigrant visa. 8 USC 1101(a)(15) clearly distinguishes "immigrants" from "nonimmigrant aliens." An H-1B is classified as a "nonimmigrant alien." Subsection (H)(1)(b) still applies to those who will work "temporarily" in the U.S. H-1Bs are still governed by 8 USC 1184 ("admission of nonimmigrants") and not 8 USC 1181 ("admission of immigrants").
> "Dual intent" isn't an administrative fiction, its a term of art for the nonimmigrant visa categories excluded from the generally applicable requirement for having (and demonstrating) the absence of immigrant intent.
It's a term of art that refers to an administrative fiction. That fiction allows a visa that is by its terms a nonimmigrant visa for temporary workers to be treated in practice as the first step in the path to permanent immigration. The 1990 INA doesn't change that in substance--it merely excludes H-1Bs from a presumption to avoid blowing up the fiction. This is the result of H-1B being a statutory kludge in response to the executive branch's longstanding abuse of the H-1 visa created in the 1952 INA.
Other countries have real skilled immigrants visas that are designed to be such. They work very differently, and make much more sense because they were designed for that purpose. E.g. https://www.canada.ca/en/immigration-refugees-citizenship/se...