TN Visa

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TN Visa

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Can TN Visa Holders Apply for Employment Based Green Cards? Timing Is Very Important

The TN Visa category is a special non-immigrant visa category exclusively for Canadian and Mexican citizens. Unlike other non-immigrant employment based visas, the TN Visa category is open only to Canadian and Mexican citizens who are members of certain predesignated professions such as accountants, architects and engineers. The initial time limit for a TN professional is three year. However, status may be renewed on a three-year basis indefinitely.

IMPORTANT: It is very important to ALWAYS remember that all TN Visa applicants are required to show “non-immigrant intent” for their stay in the United States. This means that you do not have intent to remain permanently in the United States and have intentions of returning to Canada or Mexico. Why is this important? If TN Visa holders apply for permanent residency (green card), they will have difficulty obtaining a visa or renewing their visa status because they no longer have “non-immigrant intent.”

In addition, just because you are a Canadian or Mexican citizen, where you were born is also important when considering employment based permanent residency and potential country based visa quotas. TN Visa holders should always keep in mind that when they apply for US permanent residency, the determination as to which country’s visa quota they are subject to is the country of birth rather than country of citizenship.   Therefore, a foreign born Canadian citizen is subject to the immigration visa quota of his/her country of birth, rather than that of Canada.

PERM vs. Applying for Permanent Residency: TN Visa holders are considered to loose their “non-immigrant intent” when they proceed with immigrant petitions and any application to obtain permanent residency. However, certain steps in the process do not automatically void a visa holders “non-immigrant intent.”

If an employer is considering petitioning a TN Visa holder for an employment based petition, it is important to note that an application for PERM Labor Certification is not considered initiation of the immigration petition, and becoming a beneficiary of a PERM does not violate the required non-immigrant intent for non-immigrant visas such as TN.

So, a TN Visa holder’s employer can submit a PERM application on the TN holder’s behalf at any time without affecting the TN holder’s ability to renew his/her TN visa or status. Once the TN holder obtains Labor Certification through PERM, his/her employer can proceed to submit an I-140 petition. In general, submission of an I-140 will not affect the visa holder’s existing status in the U.S.

However, after submission of I-140 the TN Visa holder may no longer be able to renew his/her TN visa because submission of I-140 manifests immigration intent. This becomes a challenge and concern for TN Visa holders. Why? The time period necessary to process and adjudicate the I-140 petition can be unpredictable at times and the visa bulletin quotas are unpredictable. If a TN Visa expires before they are able to file for permanent residency in the U.S. ( I-485 / Adjustment of Status) and obtain a work permit (EAD / Employment Authorization Document) because visa numbers are not available for their country of birth, they cannot legally work in the US.

TN Visa holders are even more constrained by the short time frame given under new PERM regulations, which provide that Labor Certification obtained through PERM is only valid for 180 days after approval. This provision forces the TN holder’s employer to file an I-140 within 180 days of PERM approval or it is invalidated.

TN Visa holders may maximize their chances to continue working in the U.S. and remain legal in the U.S., if they plan ahead and work with an experienced immigration attorney to properly prepare a beneficial timeline. At the very least, TN Visa holders should try to renew their visa immediately before they submit their I-140 to prolong their TN status.  Usually it is permitted to renew a visa up to 6 months before its expiration.

In addition, it is also always advisable that TN Visa holders considering applying for permanent residency in the U.S. should seriously consider applying for a H-1B Visa as a backup when the H-1B quota becomes available in April of each year. The great benefit of the H-1B Visa/status is that it permits the H-1B Visa holder to have dual intent and not be concerned with “non-immigrant intent.”

All non-immigrant visa holders should carefully plan their immigration strategy and not get themselves into trouble.

 

 

Best Los Angeles Immigration Lawyers

Best Los Angeles Immigration Lawyers