Maintaining TN status while pursuing a green card
It is a common misconception that an individual is precluded from maintaining TN status while pursuing permanent residency. Many believe that an individual must transition into H-1B or L-1 status before even considering a green card process. That is not true, and it usually stems from an imperfect understanding of the temporary intent requirement for TN status under U.S. immigration law.
What temporary intent is required for a TN?
Under NAFTA, a TN applicant must prove that the entry for the employment opportunity is temporary. NAFTA explicitly defines temporary entry as meaning, "entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence." The only and key definition of "temporary" under NAFTA is that the individual is not coming with the intent to establish permanent residence on that entr y. (8 CFR § 214.6(b))
Is maintaining a foreign residence required?
There is nothing under NAFTA or the Immigration and Nationality Act (INA) that requires a TN applicant to maintain a foreign residence. In fact, there is nothing in the INA under s. 101(a)(15) that references the TN under NAFTA with respect to any requirements to maintain a foreign residence abroad. The only requirement under NAFTA is that the individual is not coming with the intent to establish permanent residence on that entry. While there is language under s. 101(a)(15)(b) that visitors must maintain a foreign residence, that is a completely different category than the TN with different requirements and criteria.
What guidance exists on this issue?
Guidance from legacy INS is still followed by U.S. Citizenship and Immigration Services (CIS) that an approved labor certification, 1-140 and/or 1-130, may not be in and of itself a reason to deny an application for admission as a TN. (A labor certification, 1-140 filing or 1-130 filing are all parts of various types of green card processes.) This is based on the fact that those individuals may still complete the permanent resident process abroad through an interview at the U.S. consulate in Montreal and therefore their entry as a TN individual is not with the intent to establish permanent residence on that entry. These individuals in the process of pursuing permanent residency still qualify for temporary TN status because they are not entering the U.S. with the intent to establish permanent residence on any TN entry. They will depart the U.S. to complete the permanent residence process through an interview at the U. S. consulate in Montreal so their entry is still temporary.
Guidance going back to 2002 when the Nebraska Service Center was adjudicating TNs confirms that the filing of an 1-140 (permanent resident petition) is not a basis alone to deny a TN application.
Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form 1-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an 1-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has a nonimmigrant intent."
In addition, in response to a letter from Charles Herrington, Esq. to CBP in 2008 requesting agency guidance on the issue, U.S. Customs and Border Protection (CBP) responded with:
A TN individual does not need to switch to H-1B or L-1 status in order to pursue permanent residency. If handled properly, there is no reason not to maintain TN status throughout the permanent resident process. As one example, if an individual uses the immigrant visa process through the U.S. consulate in Montreal, s/he would never have the intent to stay permanently on any TN entry. The intent would always be to depart to complete the permanent resident process in Canada. In addition, there may be scenarios where an adjustment of status filing to complete the green card process from within the U.S. is possible, as long as you are aware of the immigrant intent guidance and you are mindful of the 90-day misrepresentation guidance found at 9 FAM 302.9-4(8) (3)(g).
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
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