US Customs and Border Protection (CBP) recently released a 2008 letter which HELPS Canadian and Mexican professional workers in TN (Trade Nafta) status, who also happen to have pending or approved immigrant petitions, such as an I-140 petition for immigrant worker.
Historically, because TN status requires "nonimmigrant" (temporary) intent, the presence of a pending or approved immigrant petition has presented risks for the TN worker who is either: (1) seeking an extension of TN status from within the United States (through an I-129 petition filed with USCIS); or (2) outside of the United States and presenting themselves to CBP for admission in TN status.
In these situations, immigration officials have denied TN extensions/admissions, taking the position that since the TN applicant has a pending or approved immigrant (I-140) petition, he or she must be an intending immigrant (someone who intends to stay in the US on permanent basis), and therefore, lacks the temporary intent required by the TN classification.
Thankfully, the letter recognizes 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."
April 21_ 2008 letter from CBP re TN applicants with pending or approved immigrant petition
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