Approved I-140 and Change from H-1B to TN Visa

Question: I am a Canadian citizen and live in Windsor, Ontario. I worked in US using TN visa for 3 years. Last year I switched to H1-B and applied for green card, my I-140 was approved this August. I chose Consular Process for my last step, but the PD is not current yet. Unfortunately, I got lay off last week. It is very hard for me to find a new employer who can sponsor my H1-B. Can I still apply for a TN visa for my new job? Some friends told me that my TN visa will likely be denied because of my I-140 approval and I have strong immigrant intent already. If I can still apply for a TN visa, what documents should I bring to the border to support my non-immigrant intent?

Reply: Under INA § 214(e) a Canadian or Mexican citizen’s admission to the U.S. under TN status is limited to a “temporary entry.” 8 CFR § 214.6 (a). A temporary entry is defined as “entry without the intent to establish permanent residence.” 8 CFR § 214.6 (b). This temporary period must have “a reasonable, finite end that does not equate to permanent residence.” Id. An intent to immigrate in the future, and not during the proposed immediate trip, should not warrant a finding that the immediate trip is not temporary. FR 1331, 1333 (Jan. 9, 1998); 9 FAM § 41.59 N5.

USCBP may consider an approved I-140 petition as a strong indication of immigrant intent, and may deny a TN application for failure to satisfy the “temporary entry” requirement. But because you commute, have selected immigrant visa processing for the last step of the green card application process, and face an immigrant visa back log, you may still argue that you meet the temporary entry requirement for a TN.

USCBP has stated that while an I-485 application for adjustment of status “definitely triggers immigrant intent,” the mere filing of an I-140 immigrant petition does not automatically trigger it. USCBP further added that when a “person is commuting, it is less likely to trigger intent” and that “[a]ny backlogs in processing would be taken into consideration on the particular case.” Michigan Chapter: Minutes/Q&A of CBP Liaison Meeting, AILA Doc. No. 07111950 (Nov. 1, 2007).

In order to meet the temporary entry requirement for a TN, individuals in your situation should consider bringing the following items to the border when applying for a TN:

  1. Proof of a residence in Canada (note: not a normal element for a TN application);
  2. Proof of immediate family members residing in Canada;
  3. Copy of the I-140 petition evidencing that you will pursue immigrant visa processing;
  4. Copy of labor certification notice providing Priority Date and recent printout of the DOS’ Visa Bulletin to establish that you are subject to an immigrant visa back log; and
  5. Statement or Affidavit attesting to your temporary entry.

Providing these documents will not guarantee an approval of a TN application in your scenario. The decision ultimately resides with the inspecting officer. The more you document and evidence your “temporary entry,” the better your chances for success. Still, even a strongly documented case may be refused as CBP inspectors often consider any signs of immigrant intent as an absolute bar to a TN. But as shown above, CBP itself has stated that the “temporary entry” requirement for TNs is a flexible, and not an absolute, rule.

In addition to documenting the items above, we frequently provide our clients with an Attorney Brief, which provides the legal basis for a TN application. Providing inspectors with the legal basis for a TN application that involves a green card can establish that there is no absolute rule on the temporary entry requirement and that certain TN applications may be approvable despite signs of immigrant intent.