TN Visa Renewal after I-140 Denial

Question: Can I renew my TN visa status a 3rd time after the denial of my I-140 petition. I have worked for this company the last 2 years. What is the best choice to renew my TN? At the Port of Entry or through the Service Centre (I-129)? Can I get a 3 year TN as an Accountant?

Reply: This depends on whether you meet the temporary entry requirements for a TN. During your proposed 1-3 year renewal/extension of TN status, do you intend to enter or remain in the U.S. to work temporarily? (Required). Or do you intend to enter or remain in the U.S. and file an adjustment of status application for permanent residence? (Impermissible.)

U.S. immigration officials may tally one strike against you for being the beneficiary of an I-140 Immigrant Worker petition. This is often considered a sign of permanent (i.e. immigrant intent). If you have relinquished your permanent intentions, then you may make an argument for a TN. Generally, in your situation, words alone may not suffice to meet the temporary entry requirements for a TN, especially if you plan to file for the TN at the border. Evidence of temporary intent may be requested, which can consist of proof of the I-140 denial; personal statement explaining temporary intentions; evidence of residence or ties to Canada; or supplemental evidence documenting the temporary nature of your work assignment (e.g. employment contract).

CBP inspectors (i.e. at the port-of-entry) frequently take a hard line approach to the temporary entry requirement for TNs. Some CBP officers treat any sign of immigrant intent – e.g. PERM application, I-140 filings, extended periods of TN stay, lack of ties to Canada, marriage to a U.S. citizen – as a ground for denial of a TN. The Service Center is more likely to take a totality of the circumstances approach, i.e. evaluating all the factors to determine whether an applicant possesses temporary intent.

The new TN regulations do not exclude any TN occupational categories from eligibility for the three year period of stay. However, TN occupational categories that U.S. immigration officials subject to a heightened scrutiny may present a more difficult case for a multi-year TN approval. For example, companies generally may not engage Management Consultant TNs as salaried employees (unless they fill a supernumerary position). When an individual has obtained several Management Consultant TNs, immigration officials suspect he or she is filling a regular, salaried position at the company. Companies therefore may have difficulty requesting a multi-year Management Consultant TN because they cannot establish that the position offered is truly “supernumerary.”

The Accountant TN category in and of itself does not have any such limitation. But because you have previously indicated immigrant intent, it is possible CBP would limit your renewal to a 1 or 2 year period. The more you are able to establish temporary intent, the more likely you may receive a TN for a three year period.