On October 14 of 2008, the USCIS announces a final rule increasing the period of stay for TNs and changes the period of admission for TN workers from one to three years. What is the impact and consequence of such a change?
First of all, the change parallels the period of stay of TN with H-1B and as such greatly reduced the TN-qualified Canadian and Mexican nationals’ interest and need in getting H-1B. Hopefully this will somewhat ease the quota depletion problem of H-1B visa each year. As TN does not have quota restriction and does not have six-year restriction as the H-1B status, the change has greatly increased the appealing of this type of visa.
Nevertheless, TN is subject to a restriction that H-1B does not have: the dual intent restriction. Simply put, the H-1B visa applicant can have both immigrant and non-immigrant intent when applying for visa, but the TN applicant can not have the immigrant intent when applying for visa. The practical consequence of such a restriction is on the green card strategic planning.
A TN holder can certainly apply for green card through employment-based preferences, be that EB-1, EB-2, or EB-3. However, TN holders must be careful that once the I-140 is filed to the USCIS after the PERM labor certification is approved or if it is filed for NIW or EB-1 purpose, the applicant has expressed his immigration intent. If he/she then tries to obtain TN visa to come to the US, the visa application most likely would be denied because of the expression of immigration intent. Therefore, the TN holders, if wishing to apply for labor certification and then I-140, must make sure that the three-year admission has been secured to avoid the intent problem. For the PERM labor certification, it takes about six months, including the recruitment period, to nine months for processing. For the I-140s, it now takes about one year or more. The visa applicant must take the time spam into consideration when planning for the green card application.
We have handled many I-140s for Canadian and Mexican nationals. If you have any question about the time planning, contact Lin & Valdez immediately. The best help is just a click away!