The Presumption of Immigrant Intent

TN Applicants Must Prove Bona Fide Nonimmigrant Status under INA 214 (b).

1. What is the Presumption of Immigrant Intent?

• The Immigration and Naturalization Act (“INA”) provides that the NAFTA TN category is treated as one of the regular nonimmigrant classifications listed under INA § 101(a)(15). See INA § 214 (e)(2).

• As result, the NAFTA TN category is subject to the same restrictions as other nonimmigrant categories. This means that an applicant for a TN is subject to the immigrant intent presumption found under INA § 214 (b).

• Under INA § 214 (b) the law presumes that every foreign citizen seeking admission as a nonimmigrant is an intending immigrant. That is, every foreign citizen is presumed to be entering the U.S. for the purpose of remaining in the country permanently.

• To avoid the presumption, and gain admission to the U.S.,  the foreign citizen must prove at the time of application that he or she is a bona fide nonimmigrant.

• The H-1 and L visa categories are exempt from this requirement (that is, applicants for these categories may possess “dual-intent”).

2.  The Repercussions of INA 214 (b) and Disproving the Presumption.

• If an applicant for a TN is unable to prove that he or she is a bona fide nonimmigrant, then U.S. immigration may deny the applicant admission to the U.S. under INA § 212 (a) (7) (A) as an immigrant without a valid immigrant visa.

• To satisfy the bona fide nonimmigrant requirement, a TN applicant must establish that he or she only seeks temporary entry into the U.S. without the intent to establish permanent residence. The applicant must demonstrate that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment. 8 C.F.R. § 214.6(b).

• However, if an applicant has had several TNs in the past or has committed immigration violations, he or she may have to provide additional evidence. This may include evidence that the applicant will depart the U.S. after completing a specific assignment or proof that the applicant still maintains ties to Canada such as a residence in Canada, property ownership, presence of family, etc. (Note that while  maintaining a foreign residence is not required for a TN, it may help satisfy the bona fide non-immigrant requirement.)

3.  Filing for a Green Card Despite the 214 (b) Presumption.

• While the concept of “dual intent” does not apply to TN applicants, an intent to immigrate in the future, and not during the proposed immediate trip, is permissible. FR 1331, 1333 (Jan. 9, 1998); 9 FAM § 41.59 N5. As long as the TN applicant, while applying for admisson to the U.S., does not intend to obtain a green card during his or her immediate visit to the U.S., the applicant should not be denied admission to the U.S. based on the 214 (b) presumption.

• Under this basis, an individual may file for a green card, yet still maintain and apply for a subsequent TN. Read more about filing for a green card while under TN status.