Late in the evening of April 20, 2020, President Trump announced by Tweet that he…
A TN visa authorizes an individual to live and work temporarily in the United States. But it is common for TN visa holders to become interested in pursuing lawful permanent resident (LPR) status while they are in the United States. If you are a TN visa holder, are you allowed to do this? Unfortunately, the answer is not easy.
The basics of a TN visa.
The TN visa was created when the United States, Mexico and Canada entered into the North American Free Trade Agreement (NAFTA). In short, TN visas gives certain classes of skilled professionals from Mexico and Canada an express route to acquiring work authorization in the United States. Examples of these categories include types of scientists, engineers, doctors and psychologists. TN visas are authorized for a maximum of three years. But if you have a TN visa you are probably already familiar with this.
What you may not be familiar with is the concepts of dual intent and immigrant intent. Let’s take a look at those.
“Dual intent” and “immigrant intent.”
U.S. immigration law draws a sharp and extremely important distinction between temporary (“non-immigrant”) and permanent (“immigrant”) visas. Under our laws, a visa is also linked to a specific purpose for travel.
A TN visa is a temporary visa that authorizes you to come the United States to accept the specific employment associated with your application. When applying for the visa, you are effectively stating to the government that you plan to come to the United States for a temporary period of time to perform a specific job role. By implication, you are also saying that you do not plan to remain permanently in the United States.
An immigration officers views the situation in terms of the concept called immigrant intent. Essentially, immigration officers assume that all visa applicants secretly want to move permanently to the United States. But remember – if that is their secret goal, the applicant would be lying if she said that she only wanted to come for a temporary purpose. In order to be eligible for a temporary visa, the applicant has to overcome the presumption that she has immigrant intent – the intent to overstay her visa and live permanently in the U.S. She has to convince the immigration officer that she plans to return after the duration of her temporary trip to the United States.
Here is where this gets extremely serious. If the person is lying about her intentions, that is an act of fraud. Such fraud potentially subjects a person to a lifetime ban from the United States. Applying for residency – as discussed below – is a key area where this becomes a concern. (As described in other posts, adjustment is problematic for similar reasons for those who traveled to the U.S. on ESTA/Visa Waiver Program).
Some visas allow for what is called dual intent. These visas allow a person to apply for a temporary visa to the United States and also have the desire to later pursue residency. But a TN visa is not a dual intent visa. That means that under the rules of the TN visa program, the TN visa holder should not be planning to become a resident.
The problem with adjustment of status.[Adjustment of status is the process of applying for residency within the United States. By contrast, consular processing refers to the process of seeking residency through the U.S. consulate located in your home country.]
To understand why adjustment of status from a TN visa is tricky, let’s look at two different scenarios. We see these type of situations all of the time at our law firm.
Situation 1 – Preexisting relationship.
June is a Canadian engineer who is married to Ted, a baker in Seattle, Washington. Ted has recently moved back to Seattle to launch a cupcake enterprise. June has a great job offer at a firm there. They have offered to help her apply for a TN visa so that she can quickly relocate and join Ted in Seattle. She plans to then apply for adjustment of status once she and Ted are living in Seattle.
Is this a good plan? Probably not.
Ask yourself: when she applies for her TN visa, what representations is June making to the immigration officer? She is telling him – whether explicitly or implicitly – that she plans to come to the United States temporarily for the purpose of working at the engineering firm. But that is not actually her plan. Her plan is to live permanently in the United States; her goal is to file for adjustment after she arrives. That means that she is being dishonest in her TN visa application.
Even if June does get her TN visa, she could still face problems down the line. When she files her adjustment application the immigration agency will again look at her history. If an officer believes that June was trying to evade immigration law – by getting the TN visa as a backdoor strategy to pursue residency – then she will have a real problem. The office may not only deny her adjustment application but can also subject her to a lifetime ban from the United States.
Situation 2 – Cross-border trips.
Imagine the same situation as above. Except in this case, June and Ted really never thought about having her apply for residency until she took her TN visa position. As the months pass, they decide that it would be a good idea to relocate permanently to the United States. Meanwhile, June has been traveling back and forth frequently between the U.S. and Canada to see family and friends. Her last trip was just a few days ago and now the couple is ready to get their adjustment paperwork filed.
Is this a good plan? Maybe.
In this case there was no problem with June applied for her TN. She had no goal – at the time – of seeking residency. So she made no misrepresentation when she filed her TN visa application.
But what about at the time she most recently crossed the border? She entered by using her TN visa, which is a visa authorized for temporary visits. What answers did she give to the immigration agent at the border? What did she say when he asked about the purpose of her trip? Did she make any representation about the temporary purpose of her travel?
Even if June did not answer any questions at the border – sometimes none are asked – she may still have a problem. Historically, the immigration agencies have looked to the timing of an adjustment application. If an individual enters on a temporary visa and immediately applies for residency, that strongly suggests that the person intentionally misused her temporary visa. Under the so-called “90-day rule“, the agencies may look with suspicion on an application filed within three months of entry. (As noted in this article, the rule does not technically apply to the agency that reviews adjustment applications).
So what should you do?
First of all, do not simply assume that you are eligible to adjust status because you entered the country legally on a TN visa and are not a criminal As described above, the law is far more complex than that. (Leaving aside the other factors that weigh on adjustment of status). To determine whether you can proceed you will need to get a clear understand of the rules governing immigrant intent. The stakes are extremely high, since a fraud determination can lead to a lifetime ban.
Understand also that the adjudication environment is currently extremely harsh. The Trump administration has significantly changed the prevailing culture at the immigration agencies. Adjudicators are especially on the lookout for those who have committed fraud or misused the system. We urge extreme caution in any case where there could be concerns about such issues.
Feel free to ask general questions in the comments below. If you would like individualized advice and assistance, our lawyers work with clients across the country every day on adjustment matters.