|A recently published authoritative letter from the U.S. Customs and Border Protection Agency (CBP) addressing the TN nonimmigrant visa category offers new and definite insight on the CBP’s policy for determining immigrant intent. In the letter, dated April 2008, the Executive Director of Admissibility and Passenger Protection Programs details clearly that filing an immigrant petition (I-140) alone is not automatically considered a demonstration of immigrant intent, and aliens with pending I-140s may still be admitted into US with a TN visa. |
The TN visa is a special nonimmigrant category reserved for Canadian and Mexican citizens who are offered qualifying positions as defined under NAFTA. While some nonimmigrant visa categories like H-1B allow for dual intent, the TN category has been considered by CBP to be strict non-dual intent category that requires that applicants show nonimmigrant intent when requesting entry to the US or renewal of TN status. As a result the CBP, which is responsible for determining entry eligibility at US ports of entry, has been tough on the issue of immigrant intent and often denied entry to TN holders who have pending I-140 petitions and even some who have only filed for PERM—often the initial first step for I-140 petitions in the EB-2 and EB-3 categories.
This immigrant intent issue made it critical for TN holders who had filed I-140 immigrant petitions to file I-485 adjustment of status applications or change to H-1B status before their TN expired. However, visa retrogression—currently worldwide for the EB-3 category and significantly retrogressed for EB-2 category individuals born in China or India—made filing the I-485 concurrently with the I-140 impossible; the competitive H-1B quota, and H-1B employer sponsorship and costs issues made H-1B petition difficult. The legal consequences and risks of maintaining TN after filing PERM or I-140 often deters TN holders from submitting these applications. Even with the recent 3-year validity extension for the TN category, some TN holders without readily available visa numbers faced the possibility of later losing valid status or being unable to travel with TN while their green card application was pending.
With the CBP new guidelines, TN status holders can apply for employment-based immigrant benefits through EB-2 or EB-3 (either PERM or EB-2 NIW), even if visa numbers are not available. They also do not need to change to H-1B. They can now remain in TN until they file for I-485 adjustment of status or consular processing when visa numbers become available. TN holders can extend TN in the US with USCIS, be admitted into US with their valid TNs after travel overseas, and apply for new TN status; filing PERM or I-140 immigration petition will not automatic jeopardize their reentry or valid status. Once they have filed their I-485 applications, they can get advance parole documents to allow them to travel.
Please note, CBP’s guidelines do not make TN a complete dual intent visa/status. TN visa holders still need to maintain their foreign residency.
The policy guidelines expand the opportunities for TN visa holders to obtain a green card through the EB-2 and EB-3 categories. China- and India- born TN visa holders can apply for a green card through the EB-2 NIW or EB-2 PERM category while they are in TN status, even though an immigration visa is not available, and all qualified TN holders can apply in the EB-3 category despite visa numbers being unavailable worldwide. This is a significant benefit because a priority date is established when a PERM labor certification or immigrant petition is filed. Thus these, previously restricted, TN holders can establish an earlier priority date and shorten the lengthy wait time for an available visa number.
*Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice, with a proven record of hundreds of successful Labor Certification, PERM, NIW, EB-1 cases. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at firstname.lastname@example.org . Ms. Lauren Miyamoto contributed to this article.