TN and immigrant intent

G

gunt

Registered Users (C)
I have been in TN status for 4 years with the same occupation. recently I had a I-140 petition approved. On the petition I had indicated consular processing.

Recently i had to re-enter the US on my TN and had trouble with US Border officials. They insisted that the approved I-140 was immigrant intent. I was able to convince them that because of consular processing i had to necessarily leave the US, so it wasn't immigrant intent. I was then admitted into the US in TN status.

Since the border incident, i have decided to file AOS instead because I don't want to have to risk a similar border incident and be denied entry. My concern is regarding the number of days since my recent entry on TN and the filing of hte I-485. I filed about 2 weeks after entry. Does anyone know if USCIS would charge that i was falsely stating that i did not have immigrant intent? Has anyone hear about people having troubles regarding this issue?
 
My lawyer told me to avoid the border if at all possible, since they have a tendancy of being a little over zealous with thier misinformation. I avoided the border and was approved without any problems. I know tens of people that were on a TN and adjusted status and got thier green cards without issue.

As early as 1996 the now-defunct INS stated that an I-140 alone does not prove immigrant intent. And as recently as 2002, NSC stated that this does not prove immigrant intent either.

The logic behind this is that you are not the applicant on the I-140....your company is. Simply put, its your COMPANY'S intention for you to work for them, but prior to filing an I-485, YOUR intention is not yet clear. One cannot immigrate on an I-140 alone, therefor for these reasons an I-140 is not clear immigrant intent on your part.

CBP does not get paid by USCIS, so they don't feel they need to adhere to thier policy, and so its often a crap shoot with these hicks at the POE when you cross the border.

Quotes relative to the issue of immigrant intent:

"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)).

"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).

As one court put it, “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)

"a desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent"
citing Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)
 
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Has anyone heard of a I-485 being denied because the applicant was admitted into the country on a TN? i am curious if it has ever happened.

Here is a quote about the issue "Adjustment of status under INA =A7245 is discretionary in nature. Even= where the alien is statutorily eligible, the Immigration and Naturalization Service ("INS") can still deny adjustment of status if negative factors are present. Preconceived intent to remain in the United States at the time of entry as a nonimmigrant (even though not arising from fraud or willful misrepresentation) may provide the necessary negative factor to deny adjustment of status.

While the INS will not make a finding of preconceived intent where the alien originally enters under a category for which dual intent is recognized (H-1 or L), an alien who originally enters under TN status and then seeks permanent residence may be denied adjustment of status on the basis of preconceived intent at the time of entry.

In order to limit the risk of being denied adjustment of status, the TN worker may wish to wait at least 60 days after entering the United States before taking any action towards permanent residence. At this point, it will be easier to argue that the TN worker did not have immigrant intent at the time that he or she initially entered the United States. "
 
gunt said:
Has anyone heard of a I-485 being denied because the applicant was admitted into the country on a TN? i am curious if it has ever happened.
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My wife filed her I-485 when in B-2 status. Approved without issues.

In order to limit the risk of being denied adjustment of status, the TN worker may wish to wait at least 60 days after entering the United States before taking any action towards permanent residence. At this point, it will be easier to argue that the TN worker did not have immigrant intent at the time that he or she initially entered the United States. "
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In a nutshell, it means "don't enter as a TN and immediately file an I-485". If you have been in the US for over 90 days then there should be no issue.
 
I think his concern is, though, that he re-entered the US of A under his TN but then went on and sent in his AOS only 2 weeks later. That's less than 90 days.
 
gunt said:
Has anyone heard of a I-485 being denied because the applicant was admitted into the country on a TN? i am curious if it has ever happened.
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Not sure if you are referring to:
a) Apply for I-485, and then enter in TN status.
or
b) Enter in TN status and then apply for I-485

Big difference. Please clarify.

In the case of "a" my lawyer told me he had a case where the I-485 was considered abandoned because of this. He had to work very hard to correct the mistake made by the applicant, and get the I-485 back on track. This is the headache most lawyers want to avoid, and therefor will not take on a TN->GC case for most people.

In the case of "b", I have not heard of anyone getting denied only for the fact that they entered in TN status prior to applying for an I-485. If they got denied, chances are they screwed something else up, and they would have been denied regardless of whether they entered in TN or H1b status.
 
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Is it not true that one should apply for EAD at the same time they apply for I-485 adjustment of status? In all likelihood, the EAD would be approved months before the I-485, thus terminating one's TN...so, the person may remain and work in US under EAD (renewing when appropriate) until I-485 is approved....

Neil.
 
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Is it not true that one should apply for EAD at the same time they apply for I-485 adjustment of status? In all likelihood, the EAD would be approved months before the I-485, thus terminating one's TN...so, the person may remain and work in US under EAD (renewing when appropriate) until I-485 is approved....

Neil.
 
Yes, you should most definitely send in the EAD app at the same time. Chances are your TN will expire before you get the green card and you won't be able to renew it once the I-485 is sent in.
 
Neil B. said:
Is it not true that one should apply for EAD at the same time they apply for I-485 adjustment of status? In all likelihood, the EAD would be approved months before the I-485, thus terminating one's TN...so, the person may remain and work in US under EAD (renewing when appropriate) until I-485 is approved....

Neil.
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Close, but slightly incorrect.

TN is a status. EAD is not a status, it is simply a work permit.

The approval of an EAD has no bearing on your TN status, nor does an EAD alone allow you to remain in the US legally. An EAD only grants you permission to work. Its the pending I-485 which eventually gives you the status of AOS pending, but this does not happen simply by filing it. So if you never use the EAD for work, your TN status is valid until whichever one of these happens first:
a) Your TN expires.
b) You use your AP to re-enter the US.
c) You use your EAD for another job.
d) Your I-485 get approved.
e) Your I-485 gets denied.

After (a), (b) or (c) happens your status would change from TN status to AOS pending. If (d) happens your status changes to permanent resident, and if (e) happens, you would be out of status.
 
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