TN Visa Professionals and Applications for Lawful Permanent Residence (Green Cards)
A Canadian or Mexican citizen may work in the U.S. under NAFTA TN visa status and file for lawful permanent residence. With careful planning a Canadian or Mexican citizen may both file for a green card and continue to work in the U.S. under TN visa status until the green card is issued.
Bona Fide Nonimmigrant Intent.
A TN visa professional must maintain bona fide nonimmigrant intent. Under the U.S. immigration NAFTA regulations a TN applicant cannot intend to establish permanent residence in the U.S. and must satisfy the inspecting officer that the proposed stay is temporary and has a finite end. This means a TN visa professional must intend to depart the U.S. at the conclusion of the TN employment. In immigration parlance, this means that the concept of dual intent does not apply to TN visa status.
Immediate Visit Must be Temporary;
Future Immigrant Intent Permissible.
The requirement to maintain bona fide nonimmigrant intent does not mean that a TN applicant cannot simultaneously apply for permanent residency (i.e., a green card) while in the U.S. under valid TN visa status. The regulations do not prohibit an applicant for a TN visa from possessing intent to immigrate in the future: “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. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.”
An Employment Based Green Card Application Does Not Grant Immediate Access To Permanent Residency.
TN visa professionals who file employment based green card applications do not generally have immediate access to lawful permanent residence status. The permanent residence process for employment based green cards includes a three-part procedure involving
(1) permanent labor certification (PERM);
(2) the filing of a petition for immigrant worker to the USCIS; and
(3) (a) filing an application to adjust status or (b) obtaining an immigrant visa at a U.S. consulate abroad.
The procedure from the step one PERM process to the step three issuance of a green card can take several years.
A TN visa professional involved in the stages of the green card process usually will not have an immediate access to a green card. Because of the lengthy process a TN professional must undertake in this three-part procedure, he or she cannot possess an immediate intent to immigrate. This is especially true in the first two steps of the process (PERM and the I-140 filing). At these stages the goal of a green card is in the distant future. Even after the PERM process is complete and the I-140 is approved, the whole process can remain at a standstill until an immigrant visa number becomes available. An immigrant visa may not be available for several years due to backlogs. Because of backlogs, the applicant may not have immediate access to a green card and may not be able to obtain permanent residence during the period of stay authorized under TN visa status.
Once Immigrant Visa Number Becomes Available, Immigrant Intent Issues Loom.
In the last stage of the green card process an immigration officer may have reason to allege immigrant intent. After the PERM process is complete, an I-140 petition is approved, and a visa number becomes available, a TN visa professional may then embark on the final step for a green card. At this stage it is possible to obtain a green card during the period of stay authorized under TN visa status. Because of this immediate access to a green card, an immigration official may allege immigrant intent.
Best Practice: Immigrant Visa Processing.
For this reason our office recommends a TN visa professional pursue a green card through immigrant visa consular processing. Under this procedure, the TN visa professional is in a better position to argue bona fide nonimmigrant intent. The argument is that, since the TN professional must return to Canada for immigrant visa processing at a U.S. consulate, the TN visa professional’s current admission to the United States is temporary. This strategy will minimize the risk of immigrant intent allegations, and will ensure continued employment authorization under TN visa status and will also permit travel while the green card application is processing.
A TN visa professional pursuing a green card through immigrant visa processing at the consulate is in a better position to argue bona fide nonimmigrant intent when applying for a TN (initial, change of status, or extension) compared to the adjustment of status candidate. In the immigrant visa processing scenario, the TN visa applicant cannot obtain his or her green card without first filing the initial application materials for immigrant visa processing, and then departing the U.S. at the completion of the process for an interview at the U.S. consulate in Montreal. Because the TN applicant must return to Canada to complete the immigrant visa processing and obtain the green card, the TN applicant presents sufficient evidence that his or her current admission to the United States as a TN visa professional would be temporary and finite.
In addition to alleviating concerns over a TN applicant’s perceived immigrant intent during the green card application process, filing for the green card under immigrant visa processing will allow the TN visa professional to travel to and from the U.S. without complication. There are no explicit travel restrictions when a TN visa professional has a pending green card application via immigrant visa processing. A TN professional who has filed for a green card via immigrant visa processing may continue to travel in and out of the U.S. by presenting his or her valid I-94.
Adjustment of Status – Potential Risks and Availability in Limited Situations.
The adjustment of status (“AOS”) application allows an individual to remain in the U.S. until the green card application process is complete. There is no requirement that the AOS applicant depart the U.S. in order to secure the green card and remain permanently in the U.S. Thus, an immigration officer will find a TN visa applicant’s intent to file for AOS or a pending AOS application as significant signs of immigrant intent. In either scenario, the officer may deny the TN application based on the requirement that a TN applicant prove bona fide non-immigrant intent. Generally, an individual who intends to file or has filed an AOS application may not obtain TN visa status. A Canadian citizen already in the U.S. under valid TN visa status who may not need to renew his or her TN should use caution before filing for adjustment of status. Just as an issue with intent may prohibit another TN for AOS candidates, filing for AOS under TN visa status may jeopardize the approval of the adjustment of status application itself. The decision to approve an application for adjustment of status is purely discretionary – much like the decision to approve an application for a TN. One of the factors considered in this exercise of discretion is the issue of preconceived intent.
A preconceived intent to immigrate at the time of entering the U.S. as a non-immigrant (such as TN status) can be a basis to deny an application for adjustment of status. An applicant may offset this adverse factor by presenting evidence that would favor an approval. For example, where the preconceived intent is the only negative factor, an application for adjustment of status may be approved where the applicant is an immediate relative of a U.S. citizen. Alternatively, if the couple did not originally intend to file for AOS, but a change in circumstances occurs after admission to the U.S., they may argue against preconceived intent based on the change in circumstances. TN visa professionals applying for adjustment of status will also need to be aware of the consequences of traveling outside the U.S. during the processing of the adjustment application. USCIS regulations provide that an application for adjustment of status is abandoned when the applicant departs the U.S. while the application is pending without first obtaining a travel document (advanced parole). A TN professional with a pending adjustment application will have to file for and receive a travel authorization document in order to leave the U.S. without abandoning the adjustment application. This rule does not apply to individuals in H-1B or L-1 visa status.
Another concern for Canadian citizens in TN status considering filing for adjustment of status is the issue of continued work authorization. Once a TN visa professional files an adjustment application, he or she generally may not obtain an extension or renewal of TN status. Applicants for adjustment of status may apply for a separate employment authorization (known as an EAD) when they file their adjustment applications. USCIS is required to make a decision on the employment authorization within ninety days. A problem may arise where a TN professional has filed for adjustment of status and for an EAD, and his or her TN I-94 expires before the EAD application is approved. Immigration officials would deny an application for an extension of the TN based on immigrant intent as evidenced by the pending adjustment application. As result, this individual would be without work authorization until the EAD is approved.
A Canadian citizen may properly work in the U.S. under NAFTA TN visa status and file for lawful permanent residence. With careful planning a Canadian citizen may both file for a green card and continue to work in the U.S. under TN visa status. To avoid delays and the risks of denials or other headaches, a successful applicant will develop an immigration strategy before the need for a renewal of TN status or the start of the green card application process. Prudent planning is the key to successfully maintaining TN visa status and obtaining a green card.