Likely yes, but nonimmigrant intent must still be proved when re-entering the U.S.
INA 214(b) is the pertinent section of law that presumes everyone coming to the U.S. has immigrant intent unless proven otherwise. In order to convince the State Department that one intends to return home, a connection to home must be shown through maintenance of a foreign address, family and social ties, or other means.
Overview
Most F-1 students on OPT tend to transition to H-1B at and then work for some time before an employer opens a PERM case for them. Because H-1B is dual intent there is no issue with leaving and re-entering the U.S. with a pending I-140. In some cases, however, a highly qualified graduate student, or a very lucky recent graduate, may be in the situation of having an I-140 filed while still in F-1 status. The issue that arises is: does the I-140 impute immigrant status, preventing re-entry in F-1 status?
Dual Intent and Quasi Dual Intent
Before covering F-1, let’s look at how other visa types are assessed. First, H-1B, L-1, and K visas are dual intent, so there is no issue with entering or re-entering on those. O and P visas are “quasi dual intent,” meaning that the law does not expressly state as such but in effect they are treated that way. 9 FAM 402.13-10 states very clearly that “’dual intent’ is permissible for O-1 visa holders.”
As applied to P visas, 9 FAM 402.14-11(A) states: “DHS has determined that the approval of a permanent labor certification or the filing of an immigrant visa petition for an alien is not a basis for denying a P petition, or for DHS to deny a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. However, this ‘dual intent’ provision does not apply to essential support personnel.”
Less than Quasi Dual Intent (but still dual intent)
Here it starts to get a bit more complicated. TN and E-2 visas are strictly nonimmigrant visas for work and investment, respectively, that have no INA provision allowing dual intent, but are still treated as such.
TN visas holders merely need to show nonimmigrant intent at the time of their entry. If they have immigrant intent in the distant future, as long as it is not connected with the immediate entry, then they are admissible. 9 FAM 402.17-7 states that “An intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.” This also comports with a June 18, 1996 INS letter that reads, “The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily.”
The letter continues that a TN applicant may be denied if the officer is not satisfied the present trip has nonimmigrant intent, but the filing of an I-140 by itself does not establish immigrant intent in and of itself.
E-2 visa holders may also file an I-140 or I-130. E-2 status alone does not permit any sort of immigrant intent, but a U.S. employer or family member may still file the appropriate form to sponsor someone in E-2 status. The beneficiary must then file Form I-508 to waive certain rights under the treaty. Although E-2 is not dual intent, if permanent residency is sought through family or employment, it is still possible (re-entry may be an issue, however).
Common Law
The BIA and federal courts have distinguished desire from intent. Wishing to become a permanent residency at some point in the future if possible is different than having the intent at entry. Going all the way back to 1924, in Chryssikos v. Commissioner of Immigration, Ellis Island, N.Y., the court stated that “there is a great difference between wanting to stay and intending to stay. And proof of a desire to stay is not proof of an intent to stay.” This was confirmed 66 years later in 1990 in Lauvik v. INS when the court stated that there was a “long line of precedent holding that an alien's desire to remain in the United States does not negate his intent to depart upon termination of his temporary status.” Lauvik was in E-2 status, and the Ninth Circuit quoted the Chryssikos case.
Back to F-1 students, who are admitted for duration of status, the mere filing of an I-140 shouldn’t affect that. In Matter of Hosseinpour, the BIA stated, “Where a nonimmigrant respondent indicates his desire to remain in this country permanently . . . [it] does not constitute a failure to maintain status . . .”
Conclusion
Dual intent is a unique concept in American immigration law, and there is no clear way to determine what constitutes immigrant intent. For F-1 students, filing an I-140 should not automatically imply immigrant intent. The officer must make that determination on a case-by-case basis, and while the filing of an I-140 may raise questions, it can be negated by evidencing strong ties back home. By contrast, filing an I-485 carries significantly more risk. As long as there is still a provable intent to return home after the completion of studies or OPT, an F-1 student should be admissible with a filed I-140.