Jian Joe Zhou, Attorney at Law
On October 14, 2008, the USCIS announced it would allow initial admission or extensions of TN status up to three years at a time. In addition, there continues to be no maximum cap set for the total period of time an alien can be in TN status. Previously, the initial time limit and renewal length for a TN professional was limited to one year for each time.
According to the USCIS, this increase will reduce the burden on TN holders and benefit U.S. employers by reducing the frequency of the renewal procedure. In fact, the change will also bring benefits for TN holders’ green card application.
TN is a special nonimmigrant visa category exclusively for Canadian and Mexican citizens who are offered positions in certain professions such as accountants, architects and engineers defined under the North American Free Trade Agreement (NAFTA). Unlike H-1B, the TN category does not allow for dual intent, and TN applicant is required to show non-immigrant intent at the port of entry or at the time of the request for renewal with the USCIS. As a result, if a TN holder applies for US permanent residency, which is manifested by I-140 petition, he/she will have difficulty obtaining a TN visa or renewing his/her TN status. However, filing of I-140 immigration petition will not impact the existing TN status if the TN holder continues to stay in the US.
Therefore, it is critical for TN holders who have filed I-140 immigrant petitions to file I-485 adjustment of status or change into H-1B status before their current TN expire. With the worldwide visa retrogression for the EB-3 category, and retrogression for China and India born individuals in the EB-2 category, it may take a couple of years before the I-485 can be filed. The TN 3-year extension brings a considerable time cushion to facilitate China and India born TN holders in their EB-2 immigration petition.
Through careful planning, a TN holder may file an I-140 petition right after receiving a three-year TN status; since it is highly likely that the immigration visa number will become available for EB-2 category for China and India born alien during those three years of TN validity, the likelihood of a TN holder being able to file his/her I-485 during his TN validity is increased. If the alien can file an I-485 adjustment before the TN expires, the alien will have maintained legal status and will also be able to receive work permits and travel documents during I-485 pendency until receiving green card.
In addition, the extended 3-year TN increases the chances for TN holders to receive H-1B status. With the competitiveness of the H-1B quota, it may be hard to receive H-1B quota with only one attempt. However, the chance will be greatly enhanced if TN holders can try for three years for H-1B under the new rule. If a TN holder can receive H-1B before the 3-year TN expires, he/she can remain in H-1B, travel in H-1B and renew H-1B without problems, even there is a pending immigration petition.
One important issue to reminder, though, is that filing immigration petition will NOT impact TN holders’ existing status in the U.S., but it will impact TN holders’ future reentry into the U.S. So, those who wish to utilize the above strategies for green card should be prepared not to travel until they can file I-485 or receive H-1B status. In addition, filing a PERM application is not considered immigration intent by USCIS.
In conclusion, we believe that the new 3-year TN visa provides a great opportunity for Chinese and Indian born TN visa holders to apply for a green card through the EB-2 NIW or EB-2 PERM category while they are in TN status. In the past, due to the short TN period, many Chinese and Indian born TN holders refrained from filing immigration petitions because they were afraid that they would be unable to maintain their legal status in the US. With the new 3-year TN visa/status rule, the opportunity for TN holders to obtain a green card through the EB-2 category has greatly increased.
*Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at jzhou@hooyou.com.
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, PC.
Houston ∙ New York ∙ Chicago ∙ Austin
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website：http://www.hooyou.com
(10/30/2008)
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