INS Will Deny TN Extensions If An I-140 Immigrant Visa Petition Has Been Filed
Courtesy of AILA
A Supervisor at the INS Nebraska Service Center has advised that TN extensions
will be denied if an I-140 employment based immigrant visa petition has been
filed on the behalf of the intended TN beneficiary. INS is basing its denial
of TN extensions on the ground that the beneficiary is failing to meet the
nonimmigrant intent requirement. The NSC has sole jurisdiction over TN
extensions.
TN is a nonimmigrant classification derived from the North America Free Trade
Agreement (NAFTA) for Canadians and Mexican citizens and permits entry of a
person into the U.S. to work in certain designated occupations for 1 year
periods. Unlike the H or L visa classifications, TNs like all other
nonimmigrants (except H/L nonimmigrants) must show nonimmigrant intent, i.e.,
no intention of residing in the U.S. indefinitely. The filing of an I-140
immigrant visa petition shows an intention to immigrate to the U.S. and,
therefore, goes against TN eligibility.
Accordingly, possible solutions would be to either file for a change of status
to H-1B or L-1 nonimmigrant classifications, where possible or simultaneously
file an I-485 Application to Adjust Status with the I-140 Immigrant Visa
petition - doing so will make the beneficiary eligible for an Employment
Authorization Card, which can be used instead of the TN for continued work
authorization.
