As with most visa classifications, immigration officers will presume that TN applicants intend to remain in the U.S. permanently. To qualify for a TN, applicants must establish that they meet the temporary entry requirements for TN visa status.
What is the Presumption of Immigrant Intent?
- The Immigration and Naturalization Act (INA) provides that the NAFTA TN visa classification is treated as one of the regular nonimmigrant (temporary) classifications listed under INA § 101(a)(15). See INA § 214 (e)(2).
- As result, the NAFTA TN classification is subject to the same restrictions as other nonimmigrant visas. This means that an applicant for a TN is subject to the immigrant intent presumption found under INA § 214 (b).
- Under INA § 214 (b) the law presumes that individuals seeking admission as a nonimmigrant are intending immigrants. That is, they are presumed to be entering the U.S. for the purpose of remaining in the country permanently.
- To avoid this presumption, individuals must prove they are bona fide nonimmigrants, and meet the temporary entry requirements for TN status.
- The H-1 and L visa classifications are exempt from this requirement (i.e., applicants for these categories may possess “dual-intent”).
TN Visa Temporary Entry Requirements
- Under INA § 214(e) an individual’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 application should indicate that the applicant’s work assignment will end at a predictable time and that the individual will depart upon completion of the assignment. Id.
Foreign Residence Requirements
- As part of their temporary entry requirements, some nonimmigrant visa classifications require that the applicant maintain a residence abroad. Other visa categories have a much lesser standard. 9 FAM 41.11 N2.1.
- Only the following nonimmigrant visa classifications are subject to the residence abroad requirement: B, F, H (except H-1), J, M, O-2, P and Q. 9 FAM 41.11 N2.1. The TN visa classification is not subject to a foreign residence requirement.
- Applicants for a TN, therefore, do not need to maintain the significant ties abroad such as “ties of property, employment, family obligation, and continuity of life” required under the more heightened temporary entry standards, e.g. the B-1/B-1 visitor visa classification. See 9 FAM 41.61 N4.2.
Limits on TN Visa Periods of Stay
- Unlike the L-1 or H-1B visa classification, there is “no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities…and otherwise continues to properly maintain TN nonimmigrant status.” 8 C.F.R. § 214.6 (h) (1) (iv).
- Furthermore, “[a]n extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.” 9 FAM § 41.59 N5.
TN Visa & Green Card Filings
- A TN applicant may not enter the U.S. for purposes of establishing permanent residence.
- While the concept of “dual intent” does not apply to TN applicants, an intent to immigrate in the future, and not during the proposed immediate trip, may be permissible. FR 1331, 1333 (Jan. 9, 1998); 9 FAM § 41.59 N5.
- According to U.S. CBP guidance, a TN applicant “could have the intent to immigrate or adjust status at a future time.” As long as the applicant’s “intent at the time of application for admission is to be in the United States for a temporary period…he or she could be admitted.” Morris, USCBP Letter (Apr. 21, 2008).
- It is only after “an application for an immigrant visa or adjustment of status” has been filed that a “TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.” Id.
Proving Temporary Intent
- If an applicant has had several TNs in the past, has spent a significant amount of time in the U.S. as a visitor prior to filing for a TN, has committed immigration violations (e.g. overstayed his/her visa), or has a pending green card application, he/she may have to provide additional evidence that he/she meets the TN visa temporary entry requirements.
- This may include evidence that the applicant will depart the U.S. after completing a specific assignment, or proof that the applicant still maintains ties to Canada/Mexico such as a residence, property ownership, presence of family, etc. (While maintaining a foreign residence is not required for a TN, it may help satisfy the temporary entry requirement.)
- If an applicant for a TN is unable to prove that he/she is a bona fide nonimmigrant, then U.S. immigration officials may deny the application under INA § 212 (a) (7) (A) as an immigrant without a valid immigrant visa.
Revised Sept. 25, 2015.