TN -> Green card: What do experts think of this lawyer's advice?..

sklm

Registered Users (C)
#1
Hi all,

I am Canadian going to work in US in TN status, and my wife will come from third country to US to join me, on TD visa. I asked a lawyer to outline the possibilities of getting green cards for us, and here is what he said, quoted below.

Since it's a bit different from what I've previously read on this and other websites, especially the part about path from TN to Green Card, I was wondering if I could get a second opinion from experts here... That would be so greatly appreciated.

The TN visa status for you and TD for your wife are quite straight forward and can be obtained on the spot at the time of your application at a Canada-US port of entry or major airport. We would prepare the application materials for you to present there.

However, if you will be seeking Permanent Resident status soon, it will be best to change your status from TN/TD to H-1B/H-4 before completing the first stage of that process, the PERM Labor Certification, because TN/TD statuses require nonimmigrant intent and the filing of the second stage of the Permanent Resident process, the I-140 petition, demonstrates immigrant intent. Unless you have held H-1B status within the last 6 years, you would not be eligible to start using a new H-1B visa until Oct. 1, 2010 due to annual limits. However, if you are to start at "the company" before then, you could do so in TN/TD status and then change to H-1B status effective sometime after Oct. 1. Because H-1B status allows "dual intent", pursuing Permanent Resident status while in H-1B/H-4 status would be fine throughout the process.

As for the Permanent Resident process, the PERM Labor Certification stage takes about 7-12 months; the I-140 Petition can be completed in about 4 months (2 weeks with USCIS "premium processing"); and the length to time to process the I-485 Applications of you and your wife granting you Permanent Resident status will depend on the minimum requirements stated in the PERM Labor Certification and your educational and experience credentials, but could take from 1 month to 5 years beyond I-140 approval, depending.
 

TheRealCanadian

Volunteer Moderator
#2
1998 called. They want your lawyer back.

USCIS has sent numerous memos indicating that a filed (or approved) I-140 is not grounds for denial of entry on a TN. Only a filed I-485 does this.
 

sklm

Registered Users (C)
#3
Thank you. I suspected something like that... :-(

Is there any available description of an alternative, more efficient solution for TN -> GC process, which I could discuss with him? I'll definitely search this forum and on the internet, but maybe someone immediately knows of some good FAQ, or forum link etc... Thanks again.
 
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sklm

Registered Users (C)
#5
Thanks, nelsona. I guess you mean the link to "21 Steps for getting a GC from TN Statusone" in his signature, I just found it... Can't believe the size of that post :)
 

sabih

Registered Users (C)
#9
I have a quick question. According to the "TN to GC Guide", after filing for I-140, one should avoid renewing TN from border just incase if one encounters a less experienced officer who could mistakingly deny TN on that basis.

My question is, whether a denial of entry is possible even when you are not actually applying for a new TN rather simply re-entering the US. For e.g. my I-140 would either be in the process or approved while I will travel aboard in December this year. Upon coming back, POE will of course notice my I-140 status and although I won't be applying for a new TN, they will still be issuing new I-94's for us. Hence I am wondering if there are possibilities that an issue of denial could arise just because of I-140 filing?
 

nelsona

Registered Users (C)
#10
There is no difference, in terms of immig intent, between a filed I-140, and an approved I-140.

In both cases, however, CBP and USCIS are under instruction to admit in TN or approve TN.

TNs are always subject to re-adjudication at border on any and all grounds, so whether you apply at border or apply by mail and re-enter at border, you will always face this risk of 'denial via incompetence'.

You need to arm yourself with the proper documentation (CIS and CBP memos) to overcome any ignorance on their part.
 

sabih

Registered Users (C)
#11
There is no difference, in terms of immig intent, between a filed I-140, and an approved I-140.

In both cases, however, CBP and USCIS are under instruction to admit in TN or approve TN.

TNs are always subject to re-adjudication at border on any and all grounds, so whether you apply at border or apply by mail and re-enter at border, you will always face this risk of 'denial via incompetence'.

You need to arm yourself with the proper documentation (CIS and CBP memos) to overcome any ignorance on their part.
Thanks Nelsona for your reply. If you happen to know any link(s) to the said CIS and CBP memos, kindly post it. I am not sure where to look but will try to google for them.
 

curiousGeorge

Registered Users (C)
#14
Thanks Nelsona for your reply. If you happen to know any link(s) to the said CIS and CBP memos, kindly post it. I am not sure where to look but will try to google for them.
If you had read the "treatise" you would have seen this, but here it is again:


Appendix C:
Quotes relative to the issue of immigrant intent:

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 ineligible 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)

Quote #5 Shows that only H and L visa allow for dual intent, which incorrectly makes most people assume that a person in TN status cannot file an I-485, while it is the inverse that is true. A person in TN status can file an I-485, but once that I-485 is filed, they are no longer eligible to file for a TN. this of course is not a problem as long as the person files for an EAD and AP in a timely manner.
Under Section 214(b) of the Immigration and Nationality Act, (Act), most nonimmigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain nonimmigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i) and (L) of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their dependent spouses and children, to maintain their nonimmigrant status during the pendency of their applications for adjustment of status.


Quote #6 addresses the issue of a spouse of an I-140 beneficiary, where by the SPOUSE is entering in TN status (but not the actual I-140 applicant).
CBP Letter Addresses Immigrant Intent for TN Applicant Married to I-140 Beneficiary (uploaded to AILA on 2/12/2009)
A 4/21/08 letter from Paul Morris, Executive Director, Admissibility and Passenger Programs, CBP, addresses immigrant intent for a TN applicant whose spouse is the beneficiary of an I-140 petition. Courtesy of Charles Herrington. AILA Doc. No. 09021280.
 

jesuisfdo

Registered Users (C)
#15
Hi you guys!
I have a question... my boss is willing to sponsor my GC and he asked me what the procedure is.
I have a 3yrTN visa I'm Mexican and have been here almost a year, according to the "TN to GC Guide" my first step to take is to fill out the PERM, right?
My question is... do you think my case would be no different than what it is for Canadians? Am I in any risk of loosing my chance here?
I would appreciate any suggestions.
Regards,
Fernando
 

nelsona

Registered Users (C)
#16
You case would be no different except that you need to keep a TN visa as well as status, and that your GC quota will be under the Mexico quota and not the rest of world.
 
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