TN Visa Approval for Computer Systems Analyst. Denial- Immigrant Intent Allegations

Prior History:

The Applicant presented this application for TN visa status under the Computer Systems Analyst category at the Vancouver PFI facility. Immigration officials refused to issue a TN based on the Applicant’s alleged lack of “ties, equities and means as a resident of Canada.” The PFI refused his entry under INA § 212(a)(7)(A)(i)(I) as an intending immigrant without a proper immigrant visa, because the Applicant did not maintain a foreign residence, had held TN status for nearly twelve years, and stated that he would work in the U.S. until he retired if presented the opportunity.

Our Analysis:

We contended that the PFI improperly denied the Applicant’s TN application. This individual’s activities were consistent with TN status. His extended period of TN status could still be classifiable as temporary because he did not possess an immediate intent to immigrate. Additionally, because the TN category is subject to a lesser standard of immigrant intent, the Applicant was not required to maintain a residence abroad. More on this legal issue.

How We Obtained an Approval:

In a Memorandum in Support of the Applicant’s TN application, we explained that the Vancouver PFI improperly considered the Applicant’s extended period of TN status as an indication of immigrant intent. The TN regulations do not place a limit on the total period of time an alien may remain in TN status. 8 CFR § 214.6 (h)(1). The Applicant’s extended period of stay was permissible because he did not possess an immediate intent to immigrate and was well capable of overcoming the presumption of immigrant intent. 9 FAM § 41.59 N5. He had never manifested an intention to enter the U.S. for any purpose other than to work temporarily under TN status for the petitioning company.

The Applicant’s statement about retirement was not a sufficient basis for a refusal based on immigrant intent: “an intent to immigrate in the future which is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.” 9 FAM § 41.59 N5. There was no evidence in the record that the Applicant’s proposed immediate trip was permanent in nature. The Applicant’s statement that he would depart the U.S. if he was no longer offered another employment opportunity, or that he would continue to work on his assignment if permitted until retirement and then return to Canada, signals that his work in the U.S. had a reasonable, finite end that did not equate to permanent residence. This was well within the scope the temporary entry permitted for TN visa status under 8 C.F.R. § 214.6 (b).

Last, contrary to the Vancouver PFI’s contentions, as a TN applicant, the Applicant was not required to possess a residence abroad. 9 FAM 41.11 N2.2-1. Although some nonimmigrant categories such as students and visitors must possess an intent not to abandon a foreign residence, TN applicants are held to a lesser standard of immigrant intent and are not subject to the residence abroad requirement. See 9 FAM 41.11 N2.1. Applicants for a TN do not need to maintain the significant ties abroad such as “ties of property, employment, family obligation, and continuity of life” required under the heightened immigrant intent standards as those applicable to the B-1/B-1 visitor category, for example. See 9 FAM 41.61 N5.2.

OCTOBER 30, 2007