By Henry J. Chang ([email protected])
Canadians who qualify as professionals under Appendix 1603.D.1 of the North American Free Trade Agreement (“NAFTA”) often prefer Trade NAFTA (“TN”) status to the H-1B category because it is easy to use. Applicants may apply for TN status at a port of entry rather than waiting for a nonimmigrant petition to be approved. In addition, employers of TN aliens are subject to fewer obligations. For example, they are not required to pay the prevailing wage, to obtain an approved labor condition application or to maintain a public file relating to the worker as in the case of an H-1B employer. However, use of the TN category may cause complications where an alien in such status is also seeking lawful permanent residence in the United States.
These complications result from the fact that dual intent is not specifically recognized for the TN category. Recognition of “dual intent” essentially means that the alien is permitted to simultaneously have a present intention to work temporarily in the United States and a future intention to become a permanent resident.
The concept of dual intent was effectively recognized for Trade Canada (“TC”) workers under the Canada-US Free Trade Agreement (“CFTA”). However, the CFTA has been superceded by NAFTA, which takes a more restrictive view of immigrant intent.
INA 214(e)(2) now provides that the TN category is to be treated as a regular admission class under =A7101(a)(15) of the Immigration and= Nationality Act (“INA”). It is therefore subject to the same restrictions as other nonimmigrant categories. Because INA =A7214(b) creates a rebuttable presumption of immigrant intent for all nonimmigrants other than those in the H-1 or L categories, the concept of dual intent is not recognized for TN workers. INA =A7214(b) states in part:
Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of … the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15).
Canadian TN workers must therefore satisfy the immigration officer that they have bona fide nonimmigrant intent whenever they seek admission to the United States. The fact that a TN worker is the beneficiary of an application for labor certification or petition for permanent residence may be given considerable weight when assessing immigrant intent. While this does not necessarily constitute conclusive proof of immigrant intent, overcoming the presumption of immigrant intent will be a very difficult task. TN workers who are the beneficiaries of labor certifications or petitions for permanent residence may be denied entry where such facts come to the attention of the inspecting immigration officer.
In practice, the question of immigrant intent does not commonly arise when a TN worker applies for admission or readmission to the United States. However, the possibility of being denied entry on this basis should not be overlooked.
In order to minimize the risk, TN workers may wish to limit their trips abroad until their immigrant visa processing is completed. If the inspecting immigration officer at a port of entry denies admission to a TN worker on the basis that he or she has immigrant intent, the TN worker may have to remain in Canada until he or she is issued an immigrant visa by a U.S. consulate abroad.
TN workers who are concerned about immigrant intent problems may wish to at least consider changing their status from TN to H-1B (assuming that they are also eligible for H-1B) before seeking permanent residence. In many cases, this precaution will not be necessary. However, this is one way to completely eliminate the potential problem of dual intent.
A TN worker can complete his or her immigrant processing either through adjustment of status in the United states or at a U.S. Consulate located abroad. However, consular processing is probably the safer route. This is because TN workers may also encounter immigrant intent problems when seeking adjustment of status.
Adjustment of status under INA =A7245 is discretionary in nature. Even= where the alien is statutorily eligible, the Immigration and Naturalization Service (“INS”) can still deny adjustment of status if negative factors are present. Preconceived intent to remain in the United States at the time of entry as a nonimmigrant (even though not arising from fraud or willful misrepresentation) may provide the necessary negative factor to deny adjustment of status.
While the INS will not make a finding of preconceived intent where the alien originally enters under a category for which dual intent is recognized (H-1 or L), an alien who originally enters under TN status and then seeks permanent residence may be denied adjustment of status on the basis of preconceived intent at the time of entry.
In order to limit the risk of being denied adjustment of status, the TN worker may wish to wait at least 60 days after entering the United States before taking any action towards permanent residence. At this point, it will be easier to argue that the TN worker did not have immigrant intent at the time that he or she initially entered the United States.
However, for the above reasons the option of consular processing for a TN worker is still preferable. In such cases, the TN worker is in a better position to argue bona fide nonimmigrant intent. The argument is that, since the TN worker intends to return to Canada to process for permanent residence, his or her current admission to the United States is temporary. While ports of entry may still refuse admission to a TN worker in such cases, a recent letter from Yvonne LaFleur, Chief of the Business and Trade Branch at the INS’ Benefits Division, suggests that a TN worker can still have bone fide nonimmigrant intent in such a situation.
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