“Dual intent” is the “administrative fiat” I was talking about. Both the 1952 and 1990 INA define an H-1 worker as an alien “who is coming temporarily to the United States to perform services.” Non-immigrant intent is a prerequisite for the category. Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa. However, the State Department didn’t recognize dual intent. When an H1 visa holder filed an immigration petition, the State Department treated that as signaling intent to immigrate, in violation of the H1 terms. When the visa holder travelled, they risked not being allowed back in the country, causing significant hardship.
With the INS having backed Congress into a corner, the 1990 INA included a narrow solution to eliminate the specific hardship and maintain the status quo. But it didn’t change the fundamental nature of the H1 visa as a temporary immigration visa. It’s still a temporary non-immigrant visa in the statute, as distinguished from immigrant visas which are also in the statute. The committee’s legislative history for the 1990 INA makes clear that Congress was just kicking the can down the road and alleviating that specific hardship without reconceptualizing H-1B as an immigrant visa:
> The difficulties encountered by those seeking temporary admission who have also expressed a desire to immigrate at some time in the future have caused severe personal hardship as well as inhibited frequent travel to the United States for business purposes. This has been particularly onerous for the beneficiaries of H and L visas. The Committee [on the Judiciary] sees no useful purpose in denying temporary entry to the United States for business purposes because of an inability to show that a residence abroad will not be abandoned. Such presumption of immigrant intent in particular circumstances creates purposeless, but often insurmountable, barriers for the prospective employee and the employer. For all categories of nonimmigrant visas (including the H and L), the bill provides that the filing of an immigrant petition cannot be a factor in determining whether an alien intends to abandon a foreign residence. The Committee notes, however, that the consular officers may rely on other evidence indicating the possibility of overstaying a visa, such as records of past visits to the United States.
If the H1-B was “meant as a path to permanent residence” the whole “dual intent” thing would be meaningless. The only reason you need “dual intent” is because the law still requires H1-B holders to have non-immigrant intent. It’s a kludge to deal with the fact that Congress can’t actually muster the votes to create a real skilled immigration system.