Wolfsdorf Rosenthal LLP

CBP Discusses Immigrant Intent for Trade NAFTA Applicants


A recently released letter sent on April 21, 2008, from Paul M. Morris, Executive Director, Admissibility and Passenger Programs, U.S. Customs and Border Protection (CBP), to Micron Technology, Inc., discusses immigrant intent for Trade NAFTA (TN) applicants whose spouses are the beneficiary of an I-140 petition. Mr. Morris states that CBP’s determination is that “the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.”

The letter notes that a TN applicant could have the intent to immigrate or adjust status at a future time, but as long as his or her intent at the time of filing the application for admission is to be in the U.S. for a temporary period under NAFTA and applicable regulations, he or she could be admitted. However, “once a TN files an application for an immigrant visa or adjustment of status, then the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant. The NAFTA professional must establish that the intent of entry is not for permanent residence.”

In an earlier letter, sent in 1996 from Yvonne M. LaFleur, Chief, Business and Trade Services Branch, to ABIL Member William Z. Reich, Ms. Fleur states that “[t]he fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore…if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused.”

The new letter may be helpful in that it reaffirms the policy of allowing TNs, who may stay in the U.S. up to three years, to enter and extend their stay, assuming their intent is to remain only. Application of the law remains inconsistent across various ports of entry. Many cases come down to proving that the individual is not entering the U.S. with the intent to establish permanent residence upon that entry.

Contact Ivener & Fullmer for details and help with TN cases.

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