H1-B is dual intent - https://en.wikipedia.org/wiki/Dual_intent so there is no winking required. H1-B can last for 6 years (can be extended beyond that too but let's not get into that) and I think 6 years should be enough for one to get the GC.
There is. It doesn't matter in practice, because it's a legal fiction anyway, but here's the legal logic:
For all visa applicants, including H1B, there is a presumption that the person is an immigrant, and they cannot obtain non-immigrant visas until they convince the admission officer of their non-immigrant intent, see section 214(b) of INA. Crucially, you need to argue that you have no intention to abandon your foreign residence. Dual intent have nothing to do with it, this is true for all kinds of visas.
The immigration law says that, as a rule, applying for permanent residency in the US (a green card) constitutes evidence of your intent to abandon foreign residence. Where dual intent policy enters the picture is that the above does not apply to holders of dual intent visas. For them, applying for green card "does not constitute evidence" of their intent to abandon foreign residence: this is the exact language used in section 205b of Immigration Act of 1990, which is the legal basis for "dual intent" policy. Note that they do not say that the rule of abandoning foreign does not apply to dual-intent visa holders, only that applying for green card no longer constitutes evidence of their intent to abandon foreign residence.
Of course, none of it matters in practice, since it's all legal fiction, and in practice things works exactly as you believe they are. The point here is that the practice is based on the legal fiction, on the wink which requires immigration officials to pretend you do not intend to abandon your foreign residence, when everyone knows that this is exactly your goal.
>For all visa applicants, including H1B, there is a presumption that the person is an immigrant, and they cannot obtain non-immigrant visas until they convince the admission officer of their non-immigrant intent, see section 214(b) of INA. Crucially, you need to argue that you have no intention to abandon your foreign residence. Dual intent have nothing to do with it, this is true for all kinds of visas.
I don't think this is right. Section 214(b) indeed says that there is a presumption of immigrant intent, but for dual intent visas, such as the H1-B, it's not necessary to demonstrate that you don't have immigrant intent.
It also seems wrong that applying for a green card could ever not constitute evidence of immigrant intent. Do you have a citation for that?
> but for dual intent visas, such as the H1-B, it's not necessary to demonstrate that you don't have immigrant intent.
In practice, no, but that's not what "dual intent" legally means.
> It also seems wrong that applying for a green card could ever not constitute evidence of immigrant intent. Do you have a citation for that?
I did not say anything about "could not ever". I guess you could maybe interpret it this way, but if you actually followed the citation I gave, it would have been clear to you. What I meant was that the section 205b of Immigration Act of 1990, which is the legal basis of "dual intent" policy, explicitly amends section 214b of INA, to remove permanent residency application as acceptable evidence for the purpose of establishing immigration intent in context of section 214b.
I'm surprised how different this is from all the secondary information out there, but ok, you're right. Thanks for the info. (I said "could ever not", not "could not ever", but that's a moot point now.)
But otherwise I agree with rest of your points.