For Mexican citizens with TN status, seeking U.S. permanent residency (a “green card”) can be complicated. The TN category is one of the work-authorized nonimmigrant statuses that requires that the foreign national intend to eventually return to his or her country of origin.
Although certain work-authorized statuses, such as the H-1B or L-1 classifications, benefit from the concept of “dual intent,” the law says that a TN nonimmigrant cannot have dual intent. Here's how this plays into your quest for a green card.
Dual intent means that a person present in the United States in a nonimmigrant status (for example, with a temporary work visa) may still seek and apply for U.S. permanent residence (a green card).
Even though the nonimmigrant might have originally said to U.S. immigration officials that he or she intended to leave the U.S. as soon as his or her permitted stay was over, the nonimmigrant can simultaneously intend to stay in the U.S. permanently. This can be a difficult concept to wrap your head around (just one of many in the tangle that is U.S. immigration law).
The law says that certain nonimmigrant statuses, including H-1B and L-1, are compatible with dual intent—but not TN status. If you are a Mexican citizen in the U.S. in TN status, you face particular risks in starting the green card process. In addition to the lengthy wait times for family-based permanent residence applications, you will also face additional scrutiny when you seek to renew your TN visa stamp at a U.S. consular post. You can be denied a TN visa, and lose your TN status, if immigration officials discover that you actually intend to apply for a green card.
Obtaining a green card and permanent residence is not impossible if you are a Mexican citizen with TN status. However, you must become acutely aware of the risks.
One of the quickest means for Mexican citizens to obtain U.S. permanent residence is to first apply for one of the work-authorized nonimmigrant statuses that do benefit from dual intent.
If you are in the U.S. in TN status, you likely also satisfy the requirements for an H-1B professional. The prerequisites for an H-1B specialty occupation parallel the TN professions to a great extent.
Have a talk with your employer about whether it would be willing to petition for you as an H-1B worker. If you are admitted under the H-1B program, you can then work with your employer to pursue a green card through an employment-based immigrant petition.
The L-1A and L-1B statuses also benefit from an allowance for dual intent. However, these visa types require a bit more in the way of prerequisites from both you and your employer. For starters, your U.S. employer must have an affiliate, subsidiary, or other similarly related company or organization in another country. Because the corporate structures favored by Mexican companies do not often match the U.S. definitions of “affiliate,” “subsidiary,” or other corporate relationship, you may encounter difficulty in proving that your Mexican employer abroad qualifies.
You must be able to show that you worked in that related company or organization abroad for at least one year within the last three years. Also, your employment abroad must have been in a specific capacity, either as a manager or executive or as a “specialized knowledge” worker. The L-1 is a much more complicated program; contact an immigration attorney if you think you might qualify.
Thanks to the North American Free Trade Agreement (NAFTA), Mexican citizens may apply for E-1 treaty trader or E-2 treaty investor status, both of which benefit from some recognition of dual intent, although not as explicitly recognized as the dual intent for H and L visas.
The E-1 program requires that your U.S. employer will be engaged in substantial trade with a country that is party to a trade agreement with the United States. Because Mexico and the U.S. are partners under the NAFTA, if your employer does significant commerce with Mexican entities, you might qualify for the E-1 program.
Similarly, the E-2 treaty investor status permits a citizen from a trade partner country to enter the U.S. to manage substantial investments out of his or her own personal assets. For example, a Mexican citizen who wishes to invest a substantial amount of money to expand a U.S. business may qualify for the E-2 program.
As with the TN, you will have to apply for an E-1 or E-2 visa stamp and face the increased scrutiny this entails. This process also has highly-specific requirements; contact an immigration attorney if you would like to seek E-1 or E-2 admission.
If you have close family members who are U.S. citizens or lawful permanent residents—or will soon become so—you might be able to apply for a green card through one of them. However, Mexican citizens usually have a long wait until an immigrant visa number for family-based applications become available. That being said, there are viable family-based options.
Derivative Benefits Through U.S. Spouse
If your spouse has been admitted to the U.S. under one of the dual intent nonimmigrant statuses, or is otherwise able to apply for his or her own permanent residence, your spouse can eventually include you on his or her green card application as a dependent. This is called obtaining “derivative benefits.”
The best part about derivative benefits is that, as a derivative beneficiary, your nonimmigrant intent is not a factor. In other words, if you are in the U.S. as a TN nonimmigrant and your spouse includes you as a derivative beneficiary on his or her green card application, you will not lose your TN status.
In addition, you can apply as a derivative under your spouse’s immigrant visa number. This is particularly beneficial if your spouse happens to be from a country other than Mexico, with more favorable immigrant visa wait times (due to lower demand).
In all cases, be sure to consult with an immigration attorney about work authorization and international travel, including to Mexico, as part of the permanent resident application process. You’ll need to take extra steps before leaving the U.S. once you apply for a green card.
As you probably already know, certain relatives who are already U.S. citizens or lawful permanent residents can file immigrant visa petitions on your behalf. (For more on that, see Who Is Eligible for a Family-Based Green Card?)
However, this process is different from the derivative benefit strategy noted above. If you are a Mexican citizen in the U.S. as a TN, the filing of such a family-based petition for you could create problems when trying to renew your TN visa or extend your status while in the United States.
Also, Mexican applicants have notoriously long wait times before an immigrant visa number may become available through the family process. Applicants residing legally in the U.S. and seeking permanent residence through a family-based petition are often able to apply for their green card through something called “adjustment of status,” which also allows the applicant to apply for U.S. work authorization while the green card is pending. However, you can apply for adjustment only if there is an available immigrant visa number.
Because you are a Mexican citizen, you will likely not be able to adjust any time soon, because of the long wait before a visa number becomes available for you. Worse, you risk losing both your TN status (because of the dual intent problem) as well as the ability to apply for work authorization through adjustment. (Also be aware that simply waiting unlawfully in the U.S. after your TN visa runs out could ruin your chances at adjustment.)