TN Holders, Nonimmigrant Intent, and Lawful Permanent Residence

The closure of borders and consulates, and the recent ban on immigrant visas, have placed added emphasis on adjustment of status as a path to permanent residence. I recently had the pleasure of participating on an American Immigration Lawyers Association panel devoted to the subject of adjustment of status and TN status. We’ve also been receiving questions on this subject, and so I thought I’d post a bit of information here.

The TN status is the professional work authorization established by the U.S.-Mexico-Canada Agreement, formerly known as the North American Free Trade Agreement.  The new agreement took effect on July 1st, and is not very different from the old agreement, as far as immigration goes. TN status is limited to roughly 65 occupations, depending on how you count them. The occupations include a range of professions, with emphasis on the sciences, health care, and acadamia.  Some examples of TN professions include Registered Nurses, Physical Therapist, Occupational Therapists, Biologists, Accountants, Engineers, Scientific Technicians, Computer Systems Analysts, Management Consultants, and University Professors.

TNs require “nonimmigrant intent,” meaning that a person who seeks admission in TN status is supposed to have the intention to depart the United States upon the expiration of their period of authorized stay. Specifically, Section 214(b) of the Immigration and Nationality Act says that all nonimmigrants have the burden to prove their nonimmigrant intent, except for H-1B specialty occupation workers and L-1 intracompany transferees. Other legal authorities confirm this nonimmigrant intent obligation, including INA 214(e)(2), 9 FAM 402.17-7, and 73 FR 61332, 10/16/08, to name a few places.

Practically, what we see sometimes is persons who have been in TN status for several years, and at some point begin to contemplate lawful permanent residence. Sometime the fact that children will age out of dependent status at age 21 is a trigger for concern. Sometimes it’s the possibility of a promotion, which might be an opportunity that doesn’t squarely fit in the TN category (e.g. health care management opportunity for a professional nurse; executive in an engineering firm).

Before 2008, TNs were only granted for one year at a time. Since then, they’ve been granted for up to three years, which opens the door for various timing considerations, as far as processing goes. 

When possible, the safest thing to do before seeking permanent residence is to change status to H-1B or L status. Section 214(b) specifically eliminates concern as to immigrant intent for these two categories.  However, these categories can be difficult to attain, due to annual quota restrictions, specific occupation requirements, and sometimes cost and timing considerations.

There are two basic routes to lawful permanent residence:  consular processing and adjustment of status.  Consular processing involves an interview at a consulate abroad, and the grant or denial of an immigrant visa application. Adjustment of status is done from within the United States: the applicant “adjusts their status” from one status to that of lawful permanent residence.

Adjustment of status may be appropriate for your typical EB-1, EB-2, or EB-3 applicant who is a TN holder, but it really is going to depend on the circumstances and timing of things, largely because of 214(b) nonimmigrant intent requirement.  An untimely departure while an application is pending—say to visit an ailing relative—could lead to abandonment of the application and difficulty obtaining a TN again.  Processing times right now can be over a year in some regions, just for the adjustment of status. Timing and risk assessment can be extremely important, and consular processing may be the best option.

However, the point of this post is to note that adjustment of status is a sometimes available option for TN holders, and increasingly important one now that there are temporarily bans on the grant of immigrant visas abroad for employment based petitioners. Difficult times require closer review of all options to permanent residence, and usually more time for planning and processing.

We’re available to schedule a consultation to discuss with particularity, and nothing written here is a substitute for individual legal advice. Wishing all well in work and in health.