During the 90′s, the former Immigration & Naturalization Service (“INS”) frequently recognized a limited form of dual intent for TN nonimmigrants. The basis for this recognition was a 1996 letter from Ms. Yvonne LaFleur, then Chief of the Business and Trade Branch at the INS’ Benefits Division, which suggested that a TN professional could still have bona fide nonimmigrant intent even if he or she was the beneficiary of an approved immigrant petition, where the TN intended to seek consular processing rather than adjustment of status.

Initially, many (but not all) ports of entry followed this guidance. However, more and more ports of entry began to disregard it in later years. Fortunately, a 2008 letter from United States Customs & Border Protection (“USCBP”) appears to have resurrected this principle once again.

In a letter dated April 21, 2008, from Mr. Paul M. Morris, Executive Director, Admissibility and Passenger Programs, USCBP opined that the mere filing or approval of a Form I-140 immigrant petition on behalf of a TN nonimmigrant would not automatically constitute immigrant intent. A TN nonimmigrant and his or her dependents may have an intention to immigrate or adjust status at a future time but, as long as his or her intention at the time of admission is to be in the United States for a temporary period, he or she could be admitted. However, once the TN files an application for an immigrant visa or adjustment of status, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

Although opinion letters are not legally binding on USCBP, the 2008 USCBP letter once again supports the recognition of dual intent for TN nonimmigrants. In fact, it goes further than the 1996 letter in permitting dual intent even in cases where the alien intents to adjust status within the United States. Click here for the full TN article.