Background

The TN visa applicant, a citizen of Canada born in China, was the beneficiary of an approved I-130 petition under the family-based third-preference category for married sons of U.S. citizens.

The applicant could not proceed with the green card process due to the oversubscription of the third-preference category. In the event an immigrant visa number became available, the applicant planned to depart the U.S. and complete his immigrant visa processing at the U.S. consulate in Montreal.

The applicant now had a job opportunity as an Economist and wanted to pursue this opportunity under the TN visa category.

Analysis

Following our review of the applicant’s case, we determined that he was still eligible for a TN visa despite his approved I-130 petition. According to U.S. immigration guidance, an applicant for a TN visa may possess an intent to immigrate in the future. He or she may still remain eligible for the TN provided the applicant’s intent at the time of application for admission is to be in the United States only for a temporary period. See 9 FAM § 41.59 N5 and P. M. Morris, Exec. Dir., Admiss. & Passenger Prog., USCBP Letter (Apr. 21, 2008).

In this case, the applicant intended to enter the U.S. solely to pursue his employment opportunity. He could not immediately proceed with his green card application due to the immigrant visa backlog. If at some point in the future his immigrant case became current, he would depart the U.S. and complete his immigrant visa processing at the U.S. consulate in Montreal. This course of action would be consistent with and did not contradict the temporary entry requirements for TN status.

Solution

We prepared a TN visa application for the applicant consisting of an employer support letter and a legal brief, which explained the applicant’s immigration background and how his fact scenario did not run afoul of the temporary entry requirements for the TN visa classification as outlined in the above guidance materials.

The applicant applied for his TN visa status at a U.S. port-of-entry and received a TN valid for a three year period.