Framing the Immigrant Intent Issue

Question: I am a Canadian citizen and meet the TN Visa requirements for a Registered Nurse. My husband is a permanent resident currently working in the USA. Will I be issued a TN visa to work? My husband intends to sponsor me eventually.

Answer: CBP likes to allege immigrant intent against TN applicants solely based on marriage to a U.S. citizen or lawful permanent resident. They do so even without regard to whether an immigrant petition has been filed. We’ve even seen denials solely based on having a U.S. citizen girlfriend. In most cases, these allegations are without merit and reflect overzealous enforcement of the immigrant intent provisions.

Now there’s no “bright line” test for immigrant intent for purposes of a TN application. We do have some general principles we can refer to:

• Admission under TN status is limited to a “temporary entry.” 8 CFR § 214.6 (a).

• Temporary entry means “entry without the intent to establish permanent residence.” 8 C.F.R. 214.6 (b).

• The temporary period must have “a reasonable, finite end that does not equate to permanent residence.” Id.

• There is no specific limit on the total period of time an alien may remain in TN status.” 8 CFR § 214.6 (h)(1).

• The concept of “dual intent,” which allows certain nonimmigrants to retain nonimmigrant status even when they have filed for permanent residence, does not apply to TN applicants. FR 1331, 1333 (Jan. 9, 1998).

• An intent to immigrate in the future, and not during the proposed immediate trip, should not warrant a finding that the immediate trip is not temporary. FR 1331, 1333 (Jan. 9, 1998); 9 FAM § 41.59 N5.

• An applicant for a TN is not required to possess a residence abroad. 9 FAM 41.11 N2.2-1.

• An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate. 9 FAM § 41.59 N5.

If you consider these rules in their entirety, I think we can summarize the concept of immigrant intent in two basic premises:

• Intent to immigrate lawfully in the future = OK.

• Intent to immigrate during the proposed immediate trip = Problematic.

On this basis, an immigration inspector may have some authority to allege immigrant intent in the case of a TN applicant married to a U.S. citizen. Why? Because the TN applicant may file for and receive a green card immediately – without having to wait for an immigrant visa number. So there can be immigrant intent problems in this scenario that have to be addressed. Read more.

Your situation doesn’t suggest immediate immigrant intent. First, your husband hasn’t filed an I-130 immigrant petition on your behalf yet. Second, even if he did, you cannot move forward with the second stage of the process (adjustment of status or immigrant visa processing) because there is a significant backlog in immigrant visa numbers for the spouse of a lawful permanent resident (Family 2A). It may take several years before an immigrant visa number becomes available to you and you can finally file for your actual green card.

Once you have an approved I-130 petition and the Visa Bulletin indicates that a visa number may soon be available, an immigrant intent issue may arise. For this reason we recommend filing for green card through immigrant visa consular processing. Under this procedure, you’re in a better position to argue nonimmigrant intent. Because you must return to Canada for immigrant visa processing at a U.S. consulate, your current admission to the United States is temporary and has a finite end. After you go to the consulate, you receive an immigrant visa, which allows you to enter the U.S. under lawful permanent resident status.