NSC Changes TN Policy
Posted Nov 22, 2002

The Nebraska Service Center (NSC) has revised its policy with regard to denials of requests for extension of TN status. The previous policy provided for the denial of any TN extension request filed for a TN professional who was also the beneficiary of an I-140, Immigrant Petition for Alien Worker. The current policy is that the I-140 will be a factor in the determination of whether to extend TN status, but will not result in an automatic denial.

TN status is a special nonimmigrant status, available only to Canadian and Mexican citizens engaged in certain types of professional-level employment. All petitions for extensions of TN status within the U.S. must be filed with the NSC, regardless of the work location. The TN, unlike the H1B or L-1, requires nonimmigrant (temporary intent); the person must only intend to reside temporarily in the U.S. By contrast, the H1B, L-1, E-1, and E-2 categories allow for "dual intent," meaning that such persons can have the short-term intent to work temporarily in the U.S. while, at the same time, having the long-term intent to remain permanently.

Although there is no limitation on the number of years allowed in the TN category, the TN is valid in one-year increments only. Each time one files for renewal, INS considers the nonimmigrant intent issue along with the other requirements for the TN. It has long been held that a TN can be denied admission at the border as an intending immigrant if s/he is the beneficiary of an I-140 petition. Therefore, although the NSC has stated that a TN who is the beneficiary of an I-140 will not automatically be denied a TN extension, it would seem that an extension under these circumstances would be, at the very least, quite difficult. Typically, persons in TN status who decide they are interested in processing for the green card change to H1B status in order to avoid this problem. As stated, H1B status allows for dual intent and, therefore, extensions of the H1B can be obtained notwithstanding the existence of an I-140 or even an I-485 (Application for Adjustment of Status to permanent residence.) The H1B is, however, more expensive and requires more of the employer in terms of compliance with numerous wage and record-keeping requirements.