JoeF said:
I am very well aware of that, and I have never stated otherwise.
Do you happen to have a link for these memoranda? Would be helpful to have that.
Joef,
You need to have access to AILA Infonet to see the actual memo online. I think you have to be a member of AILA to have access, but here is a copy I got from another legal website:
"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)).
In short, the filing of an immigrant petition (and therefore a labor certification) need not disallow an individual from applying for TN status.
The USCIS Nebraska Service Center, which holds sole jurisdiction over extensions of TN status filed within the United States, recently agreed that:
"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).
Other legal quotes relative to the question of immigrant intent.
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)
