Dual Intent
May 30th 2001, 9:49 am
#1
Guest
Posts: n/a
A while back I saw a discussion regarding TN permits which are for temporary
residence and some other kind of visa that allowed for temporary or permanent
residency. I think the term "dual intent" was used. Can someone enlighten me?
I'm currently on a TD but I've recently passed my nursing exams so I should be able
to get a TN like my husband. But I recall that the other kind of visa might be better
if we want to work in the states for 15-20 years.
TIA
residence and some other kind of visa that allowed for temporary or permanent
residency. I think the term "dual intent" was used. Can someone enlighten me?
I'm currently on a TD but I've recently passed my nursing exams so I should be able
to get a TN like my husband. But I recall that the other kind of visa might be better
if we want to work in the states for 15-20 years.
TIA
May 30th 2001, 12:51 pm
#2
Guest
Posts: n/a
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Sure.
Aliens (= foreigners, plus stateless people) fall into 2 categories: nonimmigrants,
and immigrants. Nonimmigrants want to come for a special, legally-recognized purpose
that is usually temporary. The category covers everything from visitors to foreign
students to ambassadors. Everyone else is an "immigrant". With some exceptions
(refugees and such), all immigrants must have an immigrant visa to be admitted to the
US. (You get a "green card" after you enter the US with your immigrant visa. The card
proves you are a permanent resident.)
Nonimmigrant classifications themselves can be divided into 2 categories: those that
are compatible with the intent to immigrate eventually, and those that are not. For
example, the enabling legislation for the visitor ("B") category says that a person
in that category must prove that there is no intent at all to relinquish the person's
residence abroad.
It's a strict standard. There are puzzled people who apply for a visitor's visa to
attend a Canadian immigration interview and are, of course, refused, despite having
no intention of staying permanently in the US. Why? Because, in admitting they are
trying to immigrate to Canada, they've clearly demonstrated an intent to abandon
their current residence abroad! (Oops.)
Obviously, if you eventually want to immigrate to the US but don't have an immigrant
visa yet, it would be nice if you didn't have that barrier to deal with. That's where
the "dual-intent" nonimmigrant classification comes in---for example, the temporary
skilled worker (H-1B) classification, under which "immigrant intent" is specifically
permitted. The INS (and/or State Dept.) has to believe that, even if you plan to
immigrate at some point, you won't stay permanently until you can do so legally. In
other words, you have to intend to leave if it turns out you can't secure permanent
residence. But you don't have to convince them you'd never dream of leaving your
current home.
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If you are a Canadian (not all TDs are).
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The NAFTA treaty says that TNs and TDs are supposed to apply for a "temporary" stay,
but the law doesn't say how long this can be and offers no other guidance as to what
"temporary" means. Are they "dual intent" or not? It's not clear. INS seems to be
treating them as "dual intent" classifications and renewing them very liberally.
Under that understanding, TNs and TDs are renewed many times over but their holders
cannot establish "legal residence" in the US and cannot qualify for US citizenship.
Permanent residence also has the advantage that you don't have to renew and requalify
for every year (one of these times the INS may decide to refuse---you never know),
and if you leave for less than six months and meet certain other criteria, you are
exempt from some
(in)admissibility criteria. You are also treated as a "resident" for customs
exemptions and some other stuff. And there's no provision for retiring to Florida
unless you're already a permanent resident. However, if you move out of the US
before becoming a citizen you lose your status and either have to start over or
have to qualify as a nonimmigrant.
If you want to apply for permanent residence, you (or your husband) will have to be
sponsored either by an employer or a close relative in the US. The INS web site
(http://www.ins.usdoj.gov) has more information.
--
David R. Tucker [email protected]
"I may be wrong, but I'm not Clearly Erroneous."
- Judge Hillman
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>
Sure.
Aliens (= foreigners, plus stateless people) fall into 2 categories: nonimmigrants,
and immigrants. Nonimmigrants want to come for a special, legally-recognized purpose
that is usually temporary. The category covers everything from visitors to foreign
students to ambassadors. Everyone else is an "immigrant". With some exceptions
(refugees and such), all immigrants must have an immigrant visa to be admitted to the
US. (You get a "green card" after you enter the US with your immigrant visa. The card
proves you are a permanent resident.)
Nonimmigrant classifications themselves can be divided into 2 categories: those that
are compatible with the intent to immigrate eventually, and those that are not. For
example, the enabling legislation for the visitor ("B") category says that a person
in that category must prove that there is no intent at all to relinquish the person's
residence abroad.
It's a strict standard. There are puzzled people who apply for a visitor's visa to
attend a Canadian immigration interview and are, of course, refused, despite having
no intention of staying permanently in the US. Why? Because, in admitting they are
trying to immigrate to Canada, they've clearly demonstrated an intent to abandon
their current residence abroad! (Oops.)
Obviously, if you eventually want to immigrate to the US but don't have an immigrant
visa yet, it would be nice if you didn't have that barrier to deal with. That's where
the "dual-intent" nonimmigrant classification comes in---for example, the temporary
skilled worker (H-1B) classification, under which "immigrant intent" is specifically
permitted. The INS (and/or State Dept.) has to believe that, even if you plan to
immigrate at some point, you won't stay permanently until you can do so legally. In
other words, you have to intend to leave if it turns out you can't secure permanent
residence. But you don't have to convince them you'd never dream of leaving your
current home.
>
>
If you are a Canadian (not all TDs are).
>
>
The NAFTA treaty says that TNs and TDs are supposed to apply for a "temporary" stay,
but the law doesn't say how long this can be and offers no other guidance as to what
"temporary" means. Are they "dual intent" or not? It's not clear. INS seems to be
treating them as "dual intent" classifications and renewing them very liberally.
Under that understanding, TNs and TDs are renewed many times over but their holders
cannot establish "legal residence" in the US and cannot qualify for US citizenship.
Permanent residence also has the advantage that you don't have to renew and requalify
for every year (one of these times the INS may decide to refuse---you never know),
and if you leave for less than six months and meet certain other criteria, you are
exempt from some
(in)admissibility criteria. You are also treated as a "resident" for customs
exemptions and some other stuff. And there's no provision for retiring to Florida
unless you're already a permanent resident. However, if you move out of the US
before becoming a citizen you lose your status and either have to start over or
have to qualify as a nonimmigrant.
If you want to apply for permanent residence, you (or your husband) will have to be
sponsored either by an employer or a close relative in the US. The INS web site
(http://www.ins.usdoj.gov) has more information.
--
David R. Tucker [email protected]
"I may be wrong, but I'm not Clearly Erroneous."
- Judge Hillman
May 31st 2001, 10:18 am
#3
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Posts: n/a
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[usenetquote2]> > A while back I saw a discussion regarding TN permits which are for temporary[/usenetquote2]
[usenetquote2]> > residence and some other kind of visa that allowed for temporary or permanent[/usenetquote2]
[usenetquote2]> > residency. I think the term "dual intent" was used. Can someone enlighten me?[/usenetquote2]
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[usenetquote2]> > I'm currently on a TD but I've recently passed my nursing exams so I should be[/usenetquote2]
[usenetquote2]> > able to get a TN like my husband.[/usenetquote2]
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[usenetquote2]> > But I recall that the other kind of visa might be better if we want to work in[/usenetquote2]
[usenetquote2]> > the states for 15-20 years.[/usenetquote2]
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[email protected]
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Okay, so she should try for a H-1B just in case the TN ceases to be "liberally"
extended? I've read that one cannot apply for the H-1B while on a TN; does this also
apply to a TD? Does the spouse (me) apply for a H-1B when the TN expires? My employer
might be up for it.
The only reason we're asking about the H-1B's is because they might be safer --
there's lots of rumors that TN's might not be extended so easily in the future. Is
this weak logic? Either way, we're not planning to retire in the states.
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[usenetquote2]> > A while back I saw a discussion regarding TN permits which are for temporary[/usenetquote2]
[usenetquote2]> > residence and some other kind of visa that allowed for temporary or permanent[/usenetquote2]
[usenetquote2]> > residency. I think the term "dual intent" was used. Can someone enlighten me?[/usenetquote2]
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[usenetquote2]> > I'm currently on a TD but I've recently passed my nursing exams so I should be[/usenetquote2]
[usenetquote2]> > able to get a TN like my husband.[/usenetquote2]
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[usenetquote2]> > But I recall that the other kind of visa might be better if we want to work in[/usenetquote2]
[usenetquote2]> > the states for 15-20 years.[/usenetquote2]
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[email protected]
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Okay, so she should try for a H-1B just in case the TN ceases to be "liberally"
extended? I've read that one cannot apply for the H-1B while on a TN; does this also
apply to a TD? Does the spouse (me) apply for a H-1B when the TN expires? My employer
might be up for it.
The only reason we're asking about the H-1B's is because they might be safer --
there's lots of rumors that TN's might not be extended so easily in the future. Is
this weak logic? Either way, we're not planning to retire in the states.
May 31st 2001, 1:08 pm
#4
Guest
Posts: n/a
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That's up to you.
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Neither is true.
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You can get your TN status and then immediately start the H1-B process (or even
immigrant process, or both). Note that there's a 6 year limit on holding any sort of
H status; it takes 1 year out of the US to reset that clock.
I think it would certainly be safer to get permanent residence if you want to stay
more than 6 years or so. There are plenty of reported cases of TN/TD status being
renewed more than 6 times. (It makes some sense: if 6 years is still "temporary" for
the classification called "temporary worker", it should be "temporary" for NAFTA
cases, too.) If that practice holds, the only reason to get H-1B/H4 status is if you
apply for residence AND you're worried the INS will start taking the position that
TN/TD status is not "dual intent". Whether that practice will hold is anybody's guess
(although I hope it does).
Simply put, then, what you choose to do depends on your tolerance for risk,
balanced by your tolerance for the hassle of going through the application process.
And you don't have to read much of this newsgroup to get a sense for how much
hassle is involved.
It occurs to me now that one possible reason the INS isn't being strict on either the
renewal or the dual intent issue may be that Canadian retaliation against US citizens
is certain. Americans who suddenly lose their jobs in Canada, for what they consider
to be no good reason, might be upset enough to cause political problems. If that's
one of their (INS's) reasons, the policy probably won't change. Of course, that's
just speculation.
(An editorial note I can't resist including:
Why Americans and Canadians don't all have the right under relevant treaties to live
and work indefinitely in each other's country, EU-style, is a mystery to me. Free
trade either brings benefits or it doesn't. Excluding most of the labor market, or
subjecting people to sudden exclusion based on arbitrary definitions of "temporary"
at the most awkward and vulnerable moments possible, make little sense to me. People
could stop dancing around convoluted entry requirements when they marry. And it would
save governments on both sides of the border so much wasted busywork. Why can't we
amend the treaty to allow this?)
--
David R. Tucker [email protected]
"I may be wrong, but I'm not Clearly Erroneous."
- Judge Hillman
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That's up to you.
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Neither is true.
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You can get your TN status and then immediately start the H1-B process (or even
immigrant process, or both). Note that there's a 6 year limit on holding any sort of
H status; it takes 1 year out of the US to reset that clock.
I think it would certainly be safer to get permanent residence if you want to stay
more than 6 years or so. There are plenty of reported cases of TN/TD status being
renewed more than 6 times. (It makes some sense: if 6 years is still "temporary" for
the classification called "temporary worker", it should be "temporary" for NAFTA
cases, too.) If that practice holds, the only reason to get H-1B/H4 status is if you
apply for residence AND you're worried the INS will start taking the position that
TN/TD status is not "dual intent". Whether that practice will hold is anybody's guess
(although I hope it does).
Simply put, then, what you choose to do depends on your tolerance for risk,
balanced by your tolerance for the hassle of going through the application process.
And you don't have to read much of this newsgroup to get a sense for how much
hassle is involved.
It occurs to me now that one possible reason the INS isn't being strict on either the
renewal or the dual intent issue may be that Canadian retaliation against US citizens
is certain. Americans who suddenly lose their jobs in Canada, for what they consider
to be no good reason, might be upset enough to cause political problems. If that's
one of their (INS's) reasons, the policy probably won't change. Of course, that's
just speculation.
(An editorial note I can't resist including:
Why Americans and Canadians don't all have the right under relevant treaties to live
and work indefinitely in each other's country, EU-style, is a mystery to me. Free
trade either brings benefits or it doesn't. Excluding most of the labor market, or
subjecting people to sudden exclusion based on arbitrary definitions of "temporary"
at the most awkward and vulnerable moments possible, make little sense to me. People
could stop dancing around convoluted entry requirements when they marry. And it would
save governments on both sides of the border so much wasted busywork. Why can't we
amend the treaty to allow this?)
--
David R. Tucker [email protected]
"I may be wrong, but I'm not Clearly Erroneous."
- Judge Hillman
