TN-GC Company's Lawyer not convinced

[gunt]

Why 90 days after your last admission? Is this to avoid the non-dual intent nature of a TN?

there is no such rule. i filed I-485 less than a week after getting a new TN. There are some people who feel that if one files in less than 90 days it may show that the person entered the US under a TN with immigrant intent, but didn't disclose that to the officer at the time (effectively misrepresented).

 

[DBEL]

Lawyer thought he can't fit me in EB2 so he filled in EB3..

The category isn’t determined by you it’s the job requirements that do that. If your job doesn’t require an MS or BS + 5 years then it’s EB3. Also note that prevailing wage would probably increase for the higher requirements. If a lawyer suggested to his client to inflate the requirements for immigration benefits that would be complicit to fraud. He probably asked the employer for the requirements and that’s what he copy-past into the form. My guess he did his job.

I suggest you look at the current Visa Bulletin. Under EB3 the earliest date is August 2002. This means USCIS is only accepting application of those who filed Labor Cert (PERM) before August 2002. In your case your filing (priority) date is December 2006. That date hasn’t changed in the last 6 months.

I have 4 years bachelor degree in Computer Science (evaluation done by the University of Toronto) ..

Eligibility is determined of country of birth. If you were born in India, China, Mexico or the Philippines check for your specific date.

How long did the lawyer tell you it would take?

My guess is you are looking at 5-8 years before you get your card. Now here is the catch 22. Even if you stick around all these years, when times comes to file the papers and get your Green Card your employer must give you the job that was certified. In other words, if you filed your labor for a programmer job you cannot use your approval if you’ve been promoted to Manager.

 

[DBEL]

there is no such rule. i filed I-485 less than a week after getting a new TN.

Please Clarify:

Was your “New TN” at POE (admission) or by mail (extension). They are different.

 

[gunt]

Please Clarify:

Was your “New TN” at POE (admission) or by mail (extension). They are different.

at POE

 

[Byteless]

My birth country is Pakistan, and the job category is Computer Programmer.

I got 10 years of professional experience.

Can you please post the link where I can check the priority dates?

 

[bigboy00]

http://travel.state.gov/visa/frvi/bulletin/bulletin_3111.html

My birth country is Pakistan, and the job category is Computer Programmer.

I got 10 years of professional experience.

Can you please post the link where I can check the priority dates?

 

[DBEL]

[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR214.6]

Sec. 214.6 Canadian and Mexican citizens seeking temporary entry 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).
-----------------

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.
-----------------
Looking up at the Inspector's Field Manual you find:

“At the time application for admission, the citizen of Canada or Mexico will be subject to inspection to determine the applicability of section 214(b) of the Act (presumption of immigrant intent) to the applicant.”

Also

“However, section 214(b) of the Act is applicable to citizens of Canada or Mexico who seek an extension of stay in TN status and applications for extension or readmission must be examined in light of this statutory provision.”

I think this topic has been discussed many times before on various websites. Section 214(b) does not dictate what constitute intent.

However, in light of the above it is probably difficult to argue that the entry was intended temporary when you file AOS 5 days later…

Again, the adjusting officer decided not to challenge your intent. Doesn’t mean they can’t or wont. But you are correct that there is no 90 day rule establishing intent.

 

[warlord]

You cannot be out of status once your AOS is filed. You may be without employment authorization until the EAD arrives, but that's a different issue.

Out of status meaning not being able to legally work until the EAD comes forth (if the TN has expired), not out of status as in having illegal pressence in the US...

 

[TheRealCanadian]

Out of status meaning not being able to legally work until the EAD comes forth

No, that's "without employment authorization". You can be in legal status but without employment authorization, and you shouldn't equate the two.

not out of status as in having illegal pressence in the US...

And you never should equate those two.

 

[curiousGeorge]

Again, the adjusting officer decided not to challenge your intent. Doesn’t mean they can’t or wont. But you are correct that there is no 90 day rule establishing intent.

The key words are "at the time of admission".

At the time of Gunt's admission, there was nothing that could concretely prove that his intent was in fact to file AOS. A pending I-140 may imply that intent, but it has been stated by NSC and INS in the past that an I-140 is not PROOF of intent, and is not reason enough to deny entry in TN status. Only a pending I-485 would be such proof, and "at the time of admission", Gunt did NOT have a PENDING I-485. Therefor the officer would be hard pressed to prove that Gunt's intent was to file AOS, since that facts at hand "at the time of admission" showed that Gunt did NOT have immigrant intent.

 

[TheRealCanadian]

Therefor the officer would be hard pressed to prove that Gunt's intent was to file AOS, since that facts at hand "at the time of admission" showed that Gunt did NOT have immigrant intent.

Yes, but case law from Seihoon v. Levy says that INS and now USCIS may presume intent based on acts immediately after entrance. If someone enters on a TN and then immediately files an I-485, USCIS could claim that Seihoon applies and that the alien's intent all along was to adjust status.

 

[DBEL]

Therefor the officer would be hard pressed to prove that Gunt's intent was to file AOS, since that facts at hand "at the time of admission" showed that Gunt did NOT have immigrant intent.

I got the impression that you’ve been hanging around immigrant sites to not make those “newbe” mistake.

USCIS (officers) don’t have to prove your intent they merely need to challenge you. The alien seeking immigration is the one that has the burden of proving eligibility. In other words if challenged you would need to explain/justify what happened in those 5 days that made you change your mind and file AOS.

The problem is analogue to those who bypass the wait of a J visa and enter on a B status to wed and file AOS.

 

[gunt]

USCIS (officers) don’t have to prove your intent they merely need to challenge you. The alien seeking immigration is the one that has the burden of proving eligibility. In other words if challenged you would need to explain/justify what happened in those 5 days that made you change your mind and file AOS.

For the record, something did happen between the issuance of my new TN and my filing for AOS. When i applied for the new TN i was already in the process of doing CP, however the border official didn't understand the complexities of the I-140 vs I-485 immigrant intent issues so the conversation ended up getting quite heated. It was only when the officer's supervisior interveened was it ruled in my favor that i did not in fact have immigrant intent. Upon entering the US i decided that i did not want to have to experience a similar event again should i have to leave/re-enter the US for any reason, so I switched to AOS. AOS was approved without any issues in less than 2 months.

 

[DBEL]

When i applied for the new TN i was already in the process of doing CP, however the border official didn't understand the complexities of the I-140 vs I-485 immigrant intent issues so the conversation ended up getting quite heated. It was only when the officer's supervisior interveened was it ruled in my favor that i did not in fact have immigrant intent. Upon entering the US i decided that i did not want to have to experience a similar event again should i have to leave/re-enter the US for any reason, so I switched to AOS. AOS was approved without any issues in less than 2 months.

I’m glad things worked out for the best for you.

Similarly to your POE admission different officers have different opinion on how to interpret the rules.

Since your intent was questioned for your admission in TN status I strongly suspect you made a strong point to demonstrate your non-immigrant intent.

If in fact your argument was that you were being subject of scrutiny and suspected of having the intent of immigrating so you decided on immigrating and filing AOS. One would wonder how convincing your argument would be to a USCIS officer.

Similarly to the guys at the POE, USCIS employs thousands of workers (latest newsletter had 15,000). It boils down to how much you’re willing to wage/risk that that you can convince all of them of your intent.