TN status exists under the North American Free Trade Agreement, which was signed by the United States on December 8, 1993. For more information about the likelihood of TN classification being cancelled if the United States withdraws from NAFTA, please click here. TN status is for Canadian and Mexican citizens who meet the education and/or experience requirements, and are engaged in professional activities in the United States. NAFTA defines “activities at a professional level” as requiring “at least a baccalaureate degree or appropriate credentials demonstrating status as a professional”. TN nonimmigrants are admitted for up to 3 years for Canadians. Visas are issued for one year for Mexican nationals but they are admitted for 3 years.
What is the Doctrine of Dual Intent?
Generally, nonimmigrants, including those in TN status, must represent that their stay in the United States is temporary. Under the doctrine of “dual intent”, however, a nonimmigrant may have both a short-term intent to leave and a long-term intent to remain permanently. Dual intent is recognized for the H and L visa categories, meaning individuals who hold status in these categories may file for extension of their nonimmigrant status even after they file an application for adjustment of status (AOS). However, dual intent has been rejected in the TN context in the sense that if you have filed an AOS application, you will have trouble entering the U.S. after the application has been filed. You are permitted though to file an AOS application when you are in the U.S. in TN status.
What is the Impact of Filing an Immigrant Petition (I-140 or I-130) Versus the Impact of Filing to an Adjustment of Status Application (I-145) on My Ability to Renew My TN Visa?
The fact that a TN is the beneficiary of an approved immigrant petition (e.g., I-130 or I-140) may not be, in and of itself, a reason to deny admission. This is because 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. However, once an I-485 is filed, the TN applicant is no longer eligible for admission as a TN, because the application itself “is to apply for lawful permanent residence”.
There is an interesting argument that dual intent will not be triggered where the company, as opposed to the foreign national, files a TN application. On one hand, if a foreign national files an adjustment of status (AOS) (I-485) application, s/he has indicated clear immigrant intent. On the other hand, if the foreign national’s employer subsequently files for TN extension of status (EOS), the foreign national cannot be directly implicated for having dual intent. However, the USCIS service center adjudicating the TN EOS will see the pending AOS in the system.
If I Am in TN Status and Want to Apply for a Green Card, What are Some Practical Considerations?
If possible, you should change status to a category that permits dual intent, such as H-1B, before filing an immigrant petition. This is not mandatory but is beneficial as it will give you more flexibility if you have to leave the U.S. Also, if you will have trouble renewing your TN visa after you have signaled immigrant intent.
If you have no option but to file the AOS as a TN nonimmigrant, you should extend the TN as far in advance as possible of filing the AOS, since the employer may experience problems obtaining subsequent TN extensions or visa issuance after the AOS has been filed.
There may also be risks in traveling abroad and seeking readmission after an employer has filed an AOS on behalf of the TN worker. TN workers will abandon a pending AOS if they travel internationally before the advance parole is approved.
Finally, the TN alien will be questioned about his/her intent during the AOS interview so anything you indicate on any application must be consistent and make sense.
For more information about TN status or applying for a green card in the United States, please contact Scott Legal.
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