Under the North American Free Trade Agreement (NAFTA), Canadian and Mexican citizens (known as “Treaty Nationals” or “TNs”) can come to the United States temporarily, not to exceed one (1) year at a time, under a “TN Status” non-immigrant visa, to work/engage in activities at a professional level. TN Status can be extended for as long as there is an offer of employment from any United States employer. Also, TN status generally covers a broader range of job categories, including nurses, medical/allied professionals, scientists, architects, engineers, computer systems analysts, accountants, graphic designers, veterinarians and the like.
TN Status is similar to an H-1B visa (non-immigrant working visa for professionals in a specialty occupation) except that (i) there is no statutory limitation on a TN status, unlike the H-1B (which is normally, 6 years); and (ii) TNs cannot have dual intent unlike H-1Bs, and are subject to INA 214(b) and must prove their intent not to immigrate.
Section 214(b) is part of the Immigration and Nationality Act (INA). It states:
Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…
To qualify for a temporary, non-immigrant visa (like a visitor/tourist or student visa), an applicant must meet the requirements of Section 101(a)(15)(B) or (F) of the INA – and that is, that applicant possesses a residence abroad that s/he has no intention of abandoning. Thus, a non-immigrant visa applicant has the burden of proof to show that s/he has strong family, professional and economic ties abroad that would compel him/her to leave the United States at the end of his/her temporary stay.
INA § 214(b) is fully applicable to a Canadian or Mexican under a TN Status such that a person admitted under a TN Status cannot form any intent to immigrate. For example, a Canadian engineer was admitted on a TN Status. After a few months, his employer files for an immigrant worker (I-140) petition, and it was approved. Meanwhile, the Canadian TN returns to Canada to attend his sister’s wedding and upon returning to the United States after 14 days, was denied by the border inspector upon learning that he has an approved immigrant worker (I-140) petition. The Canadian TN was denied admission at the border on the ground that he no longer has non-immigrant intent.
While the filing or approval of an immigrant petition may raise concerns whether a TN alien continues to possess non-immigrant intent, that fact may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily. However, a TN alien should be aware that the filing or approval of an immigrant petition, is a factor that will be taken into consideration along with other relevant factors, every time that a TN nonimmigrant alien applies for admission, readmission or a new extension of stay.
According to NAFTA, “temporary entry” means an entry into the United States without the intent to establish permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that TN alien’s temporary work assignment in the United States will end predictably and that the TN alien will depart upon completion of the assignment. Nevertheless, an intent to immigrate in the future which is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate.
TN aliens wishing to immigrate should consult with an immigration attorney to consider alternative strategies.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
