A recent USCIS guidance has clarified a gray area around the risk of F-1 and M-1 students violating the single intent requirement by filing an immigrant visa petition.

The guidance clarifies that merely being the beneficiary of an immigrant visa petition does not prevent the student from demonstrating intent to depart from the US.  This means an international student in the US can start the process of switching to the EB-5 visa without putting his or her F-1 status at risk. 

Single Intent and Immigrant Visa Applications

Unlike the H-1B visa, F-1 and M-1 visas are single intent visas, which means the foreign student cannot come to the US with the intention of staying permanently in the country. 

You can change your mind after entering the US and the USCIS presumes you entered with the intent to return if you applied for permanent residence after 90 days after your entry in the US. 

This applies to F-1 and M-1 students too, which means they can apply for an immigrant visa like the EB-5 visa after the 90-day period. 

The immigrant visa application would not affect a student who chooses to remain in the US throughout the process. However, those traveling outside the US faced the risk of immigration officers choosing to decide that the pending immigrant petition violated the single-intent requirement. 

Impact of the Guidance

The guidance clarifies that a pending immigrant petition, like the EB-5 petition, will not impact single intent if the student 

  • has a home abroad and does not intend to abandon the same, and
  • intends to depart home at the end of the temporary period of stay. 

The guidance’s impact will be that a pending immigrant petition cannot be the sole reason for the immigration officer to conclude that the student intended to become a permanent resident at the time of entering the US. 

More and more foreign students in the US, especially those from China and India, are considering avoiding the H-1B visa completely and exploring the EB-5 visa route to gain US permanent residence.

The guidance removes a potential risk that such students would have faced when reentering the US with a pending immigrant visa petition.