Check out my employer's lawyer's email reagrding TN to Greencard - Need your help!

[OttawaSenators]

Ignorance is bliss!

"You are correct that "company X" does not do permanent residence for TNs. That is because under the law TNs are not supposed to intend to become permanent residents. So, it is really a legal restriction rather than a "company X" policy.

What should I show him to prove him wrong? I need some USCIS document or something like that.

Unfortunately I have already used up my 6 year H1-B and I am now back on TN. During the last 4 years of my H1-B, my employer did not sponsor anybody for GC due to the bad economy. Prior to that, I had hopes of marrying my American ex-girlfriend so I didn't bother with my employer sponsoring me.

[BigJoe5]

Ignorance is bliss!

"You are correct that "company X" does not do permanent residence for TNs. That is because under the law TNs are not supposed to intend to become permanent residents. So, it is really a legal restriction rather than a "company X" policy.

What should I show him to prove him wrong? I need some USCIS document or something like that.

Unfortunately I have already used up my 6 year H1-B and I am now back on TN. During the last 4 years of my H1-B, my employer did not sponsor anybody for GC due to the bad economy. Prior to that, I had hopes of marrying my American ex-girlfriend so I didn't bother with my employer sponsoring me.

Actually, that lawyer is technically correct. TNs do not have the legal "dual intent" afforded to H and L non-immigrants. You would have great difficulty crossing the border as a TN with a PERM and then an I-140 filed on your behalf. You would be OK to travel only after filing an I-485 and obtaining advance parole.

[gunt]

Actually, that lawyer is technically correct. TNs do not have the legal "dual intent" afforded to H and L non-immigrants. You would have great difficulty crossing the border as a TN with a PERM and then an I-140 filed on your behalf. You would be OK to travel only after filing an I-485 and obtaining advance parole.

Ignore BigJoe's advice on this. A filed PERM and/or I-140 does not preclude you from crossing the border. This issue has been discussed many times in this forum and there is substantial evidence from the USCIS that PERM or I-140 does not create 'immigrant intent'; including more than one memo from USCIS. The only thing that creates 'immigrant intent' would be a filed I-485. I for one crossed the border with a filed and APPROVED I-140 while on TN. Search this subsection of the forum for the posts by CuriousGeorge. He laid out a complete How-To for TN to GC and why and how it works despite almost all lawyer's thinking otherwise.

here is a link to the How-To http://forums.immigration.com/showth...OVEEEDD!!!!!!!
The How-To has many references to USCIS documents about the issue in question. You can use those documents to stop your company's stalling.

[OttawaSenators]

Thanks a lot gunt for the link! I'll go thru it to build my case against the lawyer. For now I just asked him if what he says also applies to marrying a US citizen. I asked him: "Are you also saying I cannot become a permanent resident from TN even if I marry a US citizen?!". I know the answer but I want him to contradict himself.

People like him and BigJoe are just full of it and ignorant to the law. You can get a GC from any status. Obtaining a new non-immigrant status while your GC is pending is a different ball game that people like him and BigJoe get confused over.

[TheRealCanadian]

You can get a GC from any status. Obtaining a new non-immigrant status while your GC is pending is a different ball game that people like him and BigJoe get confused over.

That's not 100% true - certain non-immigrant statuses such as C and D are prohibited from adjusting status. However, that in itself is more ammunition for you - if it wasn't allowed it would be explicitly stated so. The vast majority of people filing an I-485 do so from a status other than H and L.

[OttawaSenators]

Does this look good for sending to the lawyer:

INA 214(b):
(b) Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .


Here is subparagraph (L):

(b) Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .


And section 101(a)(15)(H)(i):

(H) an alien (i) 3a/ 3b/ (b) subject to section 212(j)(2) , who is coming temporarily to the United States to perform services (other than services described in subclause (a) during the period in which such subclause applies and other than services described in subclause (ii)(a) or in subparagraph (O) or (P)) in a specialty occupation described in section 214(i)(1) or as a fashion model, who meets the requirements for the occupation specified in section 214(i)(2) or, in the case of a fashion model, is of distinguished merit and ability, and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 3b/ 212(n)(1) , or (b1) who is entitled to enter the United States under and in pursuance of the provisions of an agreement listed in section 214(g)(8)(A) , who is engaged in a specialty occupation described in section 214(i)(3) , and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under section 212(t)(1) , or (c) 3b/ who is coming temporarily to the United States to perform services as a registered nurse, who meets the qualifications described in section 212(m)(1) , and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that an unexpired attestation is on file and in effect under section 212(m)(2) for the facility (as defined in section 212(m)(6) ) for which the alien will perform the services; or


Is this good enough to prove to him that I can adjust status from TN to GC?

[BigJoe5]

http://ecfr.gpoaccess.gov/cgi/t/text...8.0.1.6&idno=8

8 CFR § 214.6 Citizens of Canada or Mexico seeking temporary entry under NAFTA to engage in business activities at a professional level.

(a) General. Under section 214(e) of the Act, a citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level may be admitted to the United States in accordance with the North American Free Trade Agreement (NAFTA).

(b) Definitions. As used in this section, the terms:

Business activities at a professional level means those undertakings which require that, for successful completion, the individual has a least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of the NAFTA.

Business person, as defined in the NAFTA, means a citizen of Canada or Mexico who is engaged in the trade of goods, the provision of services, or the conduct of investment activities.

Engage in business activities at a professional level means the performance of prearranged business activities for a United States entity, including an individual. It does not authorize the establishment of a business or practice in the United States in which the professional will be, in substance, self-employed. A professional will be deemed to be self-employed if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner.

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.


There is much more to be found in the controlling regulations, please refer to them....


It is NOT illegal to file for adjustment of status while in the U.S. in TN status.

It may be difficult crossing the border until an I-485 has been filed and AP has been obtained.

It may be difficult to renew TN status either via filing with USCIS or at the border dealing with CBP while a the PERM and subsequent I-140 are pending or your priority date is waiting to become current on the Visa Bulletin. These are practical considerations. DHS does not tend to be comprised of "trusting" individuals, they tend to suspect everyone is trying to "outsmart" them and "get away with something" or commit fraud (that is not to say that you fall into any of those descriptions--that is the DHS perception based on experience). That's the reality.

The way that the "immigrant intent" issue has been defeated is by proving that the "current" TN job is truly "temporary" and that the actual "immigrant intent" is for a future process that you know will take a long time to become a reality plus by that time, you might even change your mind about it. There are practical reasons why employers do not want to bother trying to help you when it would require paying hefty legal fees to craft a successful application package.

[OttawaSenators]

To BigJoe and my company's lawyer (from curiousGeorge's post):

Quote #1 started the ball rolling:
"The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay [under TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused."
Letter from Yvonne M. LaFleur, Chief, INS Business & Trade Services Branch
(posted on AILA InfoNet as “I-140 Filing Not Dispositive for TN” (June 18, 1996)).

Quote #2 reinforced the statement made in Quote #1, and now there was no doubt that a pending I-140 alone does not make one inelgible for TN status:
"After considerable discussion between the Nebraska Service Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form I-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an I-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has nonimmigrant intent."
AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet at Doc. No. 02111431 (Nov. 14, 2002).

Quote #3 is a court's description of "immigrant intent".
“There is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.”
Choy v. Barber, 279 F.2d 642, 645-46 (9th Cir. 1960)

Quote #4 is another court's description of "immigrant intent".
"A desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent."
Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)

[BigJoe5]

To BigJoe and my company's lawyer (from curiousGeorge's post):

Quote #1 started the ball rolling:
"The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay [under TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused."
Letter from Yvonne M. LaFleur, Chief, INS Business & Trade Services Branch
(posted on AILA InfoNet as “I-140 Filing Not Dispositive for TN” (June 18, 1996)).

Quote #2 reinforced the statement made in Quote #1, and now there was no doubt that a pending I-140 alone does not make one inelgible for TN status:
"After considerable discussion between the Nebraska Service Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form I-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an I-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has nonimmigrant intent."
AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet at Doc. No. 02111431 (Nov. 14, 2002).

Quote #3 is a court's description of "immigrant intent".
“There is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.”
Choy v. Barber, 279 F.2d 642, 645-46 (9th Cir. 1960)

Quote #4 is another court's description of "immigrant intent".
"A desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent."
Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)

Exactly!

That lawyer you talked to was overstating a legal requirement in order to deny that the employer simply can't be bothered filing for permandent labor certs and then petitioning. That is probably why they prefer TNs in the first place. For a TN, the most they have to do is write YOU a letter.

[OttawaSenators]

BigJoe,
You are right about the employer does not want to bother with my case but not because they prefer TNs and they don't sponsor. Currently my employer is about to start a batch of PERMs after 4 years of not doing it for anyone, and I am trying to get into this batch. Basically my employer is too conservative and does not want to take any risks.

[BigJoe5]

BigJoe,
You are right about the employer does not want to bother with my case but not because they prefer TNs and they don't sponsor. Currently my employer is about to start a batch of PERMs after 4 years of not doing it for anyone, and I am trying to get into this batch. Basically my employer is too conservative and does not want to take any risks.

I wish you luck in convincing the employer to file for you.

If it is not too forward....what is your profession (for your TN status)? Might it be easier to obtain another position with another employer in a different visa category?

[nelsona]

BigJoe,
You are right about the employer does not want to bother with my case but not because they prefer TNs and they don't sponsor. Currently my employer is about to start a batch of PERMs after 4 years of not doing it for anyone, and I am trying to get into this batch. Basically my employer is too conservative and does not want to take any risks.

Unfortunately, 4 years ago was when you should have been pressing this guy to PERM you. You had H1, why did they bother to put you on H1 if they weren't going to get you GC?

One thing you might look at is going back thru your H1 history and counting the days that you were not in H1 (time spent initialy in TN, each day spent outside US, time at the end when you went to TN), if you can muster up some time, you can ask the boss the perm you now, on TN, and thenmove you back to H1 so that your fian lH1 will expire a year after PERM (or when I-140 is apporved, which ever is shorter), then you can extend H1 forever.

Remember, there is always the rule that if you H1 is expiring and you have a PERM older than a year, or an approved I-140, you are eligible for as many H1 extensions as you need until you get your GC.

Your lawyer will probably faint if you try to outline this to him, since this is outside the box thinking tha tis far beyond his ability.