Dear Sophie: Is it OK to use a visitor visa while holding an H-1B?

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Sophie Alcorn Contributor

Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.

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Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I’m in Toronto, Canada, and I was approved for an H-1B, which was recently stamped in my passport. I plan to move to the U.S. next year. Can I visit the U.S. on a previous B-1/B-2 visa this November?

Would it raise any red flags if I were to visit as a visitor while holding an approved/stamped H-1B visa?

— Talented in Toronto

Dear Talented,

Congrats on your H-1B approval and stamp! Before I dive into your questions, let’s cover some basics on visa types.

Visa types

Immigration law has two broad types of visas:

  1. Non-immigrant visas — also sometimes called work visas, or visas;
  2. Immigrant visas — also known as green cards, or permanent residence.

But it’s a little tricky, because another factor in whether somebody receives a visa and is admitted for entry is their intention. The government officers are evaluating whether they think you intend to immigrate to the United States.

So, there’s an overlay between what type of visa or green card you want, and whether you have non-immigrant or immigrant intent:

Sophie’s matrix of intention

Green card Visa
Immigrant intent Required1 Cause for denial3 OR Approvable4
Non-immigrant intent Cause for denial2 Approvable5

Notes:

  1. Immigrant intent is the point of a green card, and you must have the intention to permanently immigrate to the U.S. if you want one.
  2. You’ve got to actually want to live in the U.S. to qualify for and maintain permanent residence.
  3. Many visas such as B for visitors, F-1 for students and J-1 for exchange visitors clearly require non-immigrant intent, and evidence of immigrant intent is cause for denial.
  4. Certain visas such as H-1B and L-1 are dual-intent, and your intention to stay short- or long-term is irrelevant to the adjudication.
  5. Most non-immigrant visas were initially designed for people with nonimmigrant intent.

So for people with immigrant intent, the law provides for green cards. The whole point of obtaining permanent residence is to enable certain people to achieve their intention of staying permanently in the U.S. They can live and work in the U.S., travel abroad with few restrictions, and even apply to become U.S. citizens after fulfilling certain requirements.

However, people seeking single-intent visas or entry based on these visas that only permit non-immigrant intent, such as B in the situation you describe, must demonstrate to immigration officials that their stay in the U.S is only temporary and they intend to eventually return to live in their home country.

In general, it can be challenging to shift from a non-immigrant visa to an immigrant visa, also known as a green card. The general purpose of this immigration policy is so that people don’t abuse the system by obtaining non-immigrant visas and then overstaying without authorization.

But there is an exception: It is OK for people on dual-intent visas (which are generally non-immigrant work visas) to apply for green cards.

Multiple visas in your passport

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