Pinturicchio said:
That was my point. I just wanted to get clarification, I mean if the TN does not allow dual intent, then how come after applying for AOS, it is still valid for work purposes?
Doesn't that negate the non-immigrant nature of the visa?
Just curious
You need to understand the definition of what non-immigrant intent really means. It means that at the time when you are applying for a TN visa, you do not have immigrant intent. It does not mean your intent cannot change at a later date. It does not mean you cannot apply for I-485 while on a TN. This is a very common misconception of the law. Intent can only be measured at the time the application is made. Things change, and so can intent. There have been lawsuits that have proven what intent really means. Many good lawyers who are non-NAFTA experienced will not touch a TN to GC case because of this misunderstanding.
When you get the TN status, one's intent can change, but no future TN would be allowable, since imigrant intent has been shown when an I-485 is filed. Therefor if you apply for TN status, you would remain in that status until you re-renter the US with a pending I-485, since unlike a dual intent visa like H1b the officer at the POE does not need to see an Advance Parole to keep the I-485 active, since an H1b allows for dual intent. Since a TN only allows for single intent, the person would need to provide an Advance Parole and would be admitted in AOS pending status. No concerns will be given about the previous TN status the person was in.
There is nothing mentioned in the laws about an I-485 causing a TN to be nullified simply by applying for an I-485. The I-485 does not overide the current status simply by filing the application, the same holds true for B2 status. Therefor if the person never re-enters the US (and remains in the US) the TN would be valid until it expires. Since the person cannot reapply for a new TN, the person would therefor be automatically be granted the status of AOS pending by default, simply because there is no other status available, and there is a pending I-485.
I went through this successfully in the employment based track. I even got randomly called for an interview at the local district office, (which is uncommon for employment based applicants) and I was approved without question about my TN status, in front of an immigration officer. Since I never left the country, I still had my original I-94 in my passport, with the expired TN status. He saw my old I-94 with the TN status printed right on it, and it caused no issues, even though I continued to work using that status between the time that I applied for my I-485 and the time that my TN expired, at which point I used my EAD for work, and I would have used my AP for travel.
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 a 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)
