LEAKED USCIS MEMO SUGGESTS EXPANSION OF DUAL-INTENT TO TN VISAS

In a recently leaked draft internal USCIS memo, agency staff presented several administrative options to USCIS Director Alejandro N. Mayorkas as an alternative to the lack of comprehensive immigration reform by Congress.

One of the Memo’s recommendations involved expanding the dual intent doctrine to cover other nonimmigrants such as F, O, TN, P and E visa holders. This action would treat TN visa workers who file for adjustment of status in the same manner as H-1B visa workers. Under the dual intent doctrine these non-immigrants could maintain their nonimmigrant status and travel overseas without advance parole while their Adjustment of Status applications were pending. They would also be able to maintain their nonimmigrant status if USCIS denied their adjustment applications.

The memo listed the proposed “target date” to issue a final rule for this recommendation as within 12 months. As the memo is undated, we do not know whether USCIS has begun to evaluate or act on any of the recommendations. In the event USCIS does consider expanding the dual intent doctrine to other non-immigrant categories, USCIS will first issue a Notice of Proposed Rule Making providing more information and requesting public commentary on the proposed rule change.

In a response to AILA regarding this memo, USCIS stated that “[i]nternal draft memos do not and should not be equated with official action or policy of the Department… Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected.” See AILA InfoNet Doc. No. 10080263 (posted Aug. 2, 2010).