Unlike Ls and Hs, there is no specific statutory recognition of dual intent for E visa holders. Compare INA§214(h) with INA 101(a)(15)(e), n.b. 8 CFR§214.2(h)(16) and 8 CFR§214.2(l)(16). Still, there is longstanding recognition that E visas are different from other visa categories. As with A and G visas, adjustment of status from an E visa requires filing an I-508 waiver of rights, privileges, exemptions and immunities—the fact that there is a requirement for this shows that adjustment is contemplated and permissible. Similarly, unlike other nonimmigrant visa categories, the E visa applicant is not required to maintain a foreign residence one has no intention of abandoning. INA§101(a)(15)(e), 9 FAM 401.1-3(D).
Dual intent for E visa holders was essentially recognized in the August 5, 1997 INS Memorandum from Paul W. Virtue, Acting Executive Associate Commissioner, Programs, to Regional Directors, “Special Considerations for Adjustment of Status Applicants: A: Maintenance of E, H, or L Nonimmigrant Status. B. Continued Validity of Unexpired Nonimmigrant Employment Authorizations”. HQ 70/6.2.5, 70/6.2.9, 70/6.2612, 70/23.1, 120/17.2.
E nonimmigrants have long been able to extend their stay indefinitely in the United States in order to pursue their treaty-based activities and to return to E classification, should an application for adjustment be denied.
The Virtue Memorandum clearly indicates acceptance of E visa holders’ eligibility to seek adjustment of status without jeopardizing their E visa status.
Of course, E visas are not petition-based; one may change or extend nonimmigrant status in the US to an E visa, but once the beneficiary departs, s/he must apply de novo before a consular officer (and, generally, consular officers have little regard for approved I-129E petitions).
The burden is always on the applicant to establish eligibility for the visa sought, but the change to the FAM clearly indicates a presumption that is difficult to overcome and should serve as a strong caution to E visa holders considering adjustment of status. In fact, best practice has always been to favor consular processing where an immigrant petition may be under consideration.
Source: AILA Doc. No. 18101802.
