For Canadian citizens with TN status, seeking U.S. permanent residency (a “green card”) can be tricky. 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.
Dual intent means that a person present in the United States in a nonimmigrant status may still seek and apply for permanent residence. Even though the nonimmigrant may have originally declared to U.S. immigration officials the intent to eventually leave the U.S., he or she can simultaneously intend to stay permanently. This is perhaps one of the stranger concepts in 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. Unfortunately, if you are a Canadian citizen in the U.S. in TN status, this means that even starting the application process for a green card potentially could lead to your losing TN status and potentially being returned to Canada.
If you are a Canadian citizen and a TN worker who would like to obtain a green card, there are alternatives. These routes may require a little more leg work, but ultimately you will be able to comply with U.S. immigration law and become a lawful permanent resident.
One way to obtain permanent residence is to first apply for one of the work-authorized nonimmigrant statuses that do benefit from dual intent, as follows.
If you are in the U.S. in TN status, you likely also satisfy the requirements for an H-1B professional. The underlying requisites for an H-1B specialty occupation parallel the TN professions to a great extent.
You should discuss with your employer 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 permanent residence through an employment-based immigrant petition.
The L-1A and L-1B statuses also benefit from 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. Also, 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. Last, 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 complicated program; contact an immigration attorney if you believe you qualify.
Thanks to the North American Free Trade Agreement (NAFTA, on which the TN visa is based), Canadian 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 Canada and the U.S. are partners under the NAFTA, if your employer does significant commerce with Canadian entities, you may 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 Canadian citizen who wishes to invest a substantial amount of money to expand a U.S. business may qualify for the E-2 program.
Both the E-1 and E-2 statuses have 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, as follows.
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, he or she 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 own green card application, you will not lose your TN status.
Nonetheless, be sure to consult with an immigration attorney about work authorization and international travel, including to Canada, 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 who is eligible, see Family-Based Immigration.)
However, if you are in the U.S. as a TN, the filing of such a family-based petition for you could trigger a violation of your nonimmigrant status. This process is different from the derivative benefit strategy noted above.
If you are in the U.S. in TN status and have an immediately available immigrant visa number, you might be able to file an application to adjust your status to permanent residence simultaneously with your family’s petition for you. When you apply for adjustment of status, you can also apply for an employment authorization document that allows you to work in the U.S. while your adjustment is pending. However, this process entails certain risks for TN nonimmigrants because of the dual intent problem. Contact an immigration attorney for details and a personal analysis.