TN App for Civil Engineer Approved Despite Approved Labor Cert and I-140

Based on his Master’s and Bachelor’s degree in Civil Engineering, and over twelve (12) years experience in the engineering of road, highway, viaduct and bridge construction, this licensed Professional Engineer had no issues qualifying for a TN under the Engineering category for this state’s Department of Transportation.

Despite the strength of the merits of the case, this applicant faced complications due to some tell-tale signs of immigrant intent. The applicant had an approved Labor Certification and I-140 petition, and had also chosen to obtain his green card through adjustment of status.

The general rule is that a TN professional worker may not possess immigrant intent. That is, at the time of admission into the U.S., a TN applicant may only seek temporary entry into the U.S. and must not possess an immediate intent to establish permanent residence. Although an approved labor certification or Form I-140 petition for permanent employment is not necessarily a bar to admission, evidence that an individual seeks to apply for adjustment of status may make it difficult for a TN applicant to prove bona fide nonimmigrant intent. The reason for this is that once a foreign worker is within the U.S., and is otherwise eligible for an immigrant visa, the foreign worker may obtain a green card by applying for adjustment of status with Form I-485. The foreign worker can obtain the green card without ever departing the U.S.

Although this client’s priority date was several years off in the future, and practically speaking could not adjust status within the time period of his proposed TN stay, an inspecting officer could still be inclined to deny the application because the applicant evidenced intent to file an adjustment of status application in his I-140 immigrant petition.

To avoid any complications with respect to immigrant intent, we advised this client to modify his I-140 immigrant petition to reflect his decision to seek his green card through immigrant visa processing rather than adjustment of status. When a TN applicant has a pending or approved Labor Certification or I-140 immigrant worker petition, our office often recommends that the TN applicant pursue a green card through immigrant visa processing.

In such cases, the TN worker is in a better position to argue bona fide nonimmigrant intent. The argument is that, since the TN worker must return to Canada for Immigrant Visa Processing, the TN worker’s current admission to the United States is temporary and lacks immigrant intent. In fact, there is no better evidence of temporary intent than the fact the person plans to leave the United States to obtain a green card.