There is a bit of confusion around the ability of the holder of TN status to be sponsored for U.S. permanent residence (green card) by their spouse or employer. This confusion most commonly comes from the fact that TN status is temporary and as such is designated as non-immigrant. This means that an applicant for TN status must be coming to the United States to assume a temporary position and during such employment have the intent to maintain and return to their foreign residence at the termination of the temporary employment. On the other hand, filing for U.S. permanent residence (green card) establishes immigrant intent, or intent to remain permanently in the United States. For this and other reasons, it is commonly understood that an employer or spouse cannot sponsor a TN visa holder for permanent residence. This is not the case.
Intent is determined at the time an application for an immigration benefit is made. For the purposes of TN status, intent is determined at the border/pre-flight inspection interview or at the time of filing with U.S. Citizenship and Immigration Services (USCIS). At the time of an application for TN status the beneficiary must have temporary intent, or the intent to return to their foreign residence at the end of their temporary employment. However, intent is not stagnate and can change. If during the course of temporary employment in the United States under TN status the intent of the employer or employee changes, sponsorship for U.S. permanent residence may be an option. Intent often changes when circumstance change. An employer may have the initial intent to hire an employee temporarily but change their mind during the course of employment because of the value they see in the employee. Another scenario under which intent commonly changes is through marriage to a U.S. Citizen or U.S. Permanent Resident. In either case, sponsorship for permanent residence may be an option.
Although TN status is reserved for those with nonimmigrant intent, this does not preclude TN status holders from being sponsored for permanent residence through employment or family. The mere filing of an application for a spouse or employee without anything else does not automatically demonstrate immigrant intent. As long as the intent is to obtain permanent residence at a future time, nonimmigrant intent can still be present. The process of adjusting from TN status to U.S. permanent residence is delicate and must be dealt with properly. We have experience helping both employers and spouses with the often complex green card process. It is best to seek advice and counsel from an experienced U.S. immigration attorney before starting the green card process. Contact Mr. Richards today for a free assessment of your immigration matter.
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