I-140 Filing Not Dispositive for TN

TN Workers who Must Remain in TN Status while Pursuing a Green Card Should Consider Immigrant Visa Processing, rather than Adjustment of Status.

• Canadian TN professionals must clearly satisfy the immigration inspection officer that they have bona fide nonimmigrant intent whenever they seek admission to the United States. Evidence that a TN worker has filed an application for labor certification or an I-140 petition for permanent employment may be considered significant proof of immigrant intent. These filings may not constitute conclusive proof of immigrant intent, but can present a significant imediment in overcoming the presumption of immigrant intent.

• In a 1996 letter, Mr. Yvonne LaFleur, Chief of the Business and Trade Branch, legacy INS Benefits Division, suggested that a TN professional could still have bona fide nonimmigrant intent even though a beneficiary of an approved I-140 immigrant petition, where the TN applicant seeks a Green Card via consular processing rather than adjustment of status.

The following is an excerpt of that letter:

This refers to your letter of March 7, in which you state that a Canadian citizen was refused admission as a TN nonimmigrant under the North American Free Trade Agreement (the NAFTA) because he is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker, and, therefore, could not establish that his entry was without the intent to establish permanent residence in the United States. You submit that a TN nonimmigrant may be admitted to the United States to complete a temporary employment engagement even though he or she is the beneficiary of an approved I-140 petition.

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The determination as to whether or not an alien is eligible for admission or extension of stay as a TN professional must be made by the immigration officer at the time the alien applies for admission or extension of stay. Each application must be judged on its own merits.

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At the present time, there is no specified upper limit on the number of years a citizen of Canada or a citizen of Mexico may remain in the United States in TN classification...However, the presumption of immigrant intent under section 214(b) of the Act is applicable to NAFTA professionals under section 214(e) of the Act (unlike that for H and L nonimmigrants...). Accordingly, applicants for admission, extension, or readmission as NAFTA professionals will be subject to a determination by the Service of the applicability of section 214(b) of the Act to the applicant.

The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that under the conditions as described in your letter, a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused.

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Yvonne M. LaFleur, Chief

Business and Trade Services Branch

Benefits