Mark A Ivener, A Law Corporation

CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved

A 2008 letter just recently released (PDF) from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa – i.e., had an immigrant visa interview – and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

This is consistent with a practice that has not always been followed. A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that an TN applicant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual’s intent is to remain in the U.S. temporarily. Some CBP officers, however have not always followed that advice.

The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states 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.”

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.