IMMIGRATION LAW MONTHLY

February, 1997

My Canadian immigration was just approved and I am on H-1 status in US. I am planning to go to India sometime this year. My question to you is, if I fly from Canada to India and come back to Canada in about three weeks, do I need a multiple entry H-1 Stamp on my passport to enter the US from Canada?

You mentioned that your Canadian immigration case was approved but did not mention whether you had already landed in Canada and obtained your Record of Landing. If you have, you can claim the visa-exemption available to certain landed immigrants having common nationality with Canadian citizens. Indian nationals are considered to have common nationality with Canadians. A passport is not required of such alien except after a visit outside of the Western Hemisphere. Therefore, technically all you will need is your I-94 evidencing your current H-1B status. I would bring your passport anyway, since a Record of Landing does not contain a photograph.

If you do not have a Record of Landing by the time that you seek re-entry to the United States, you will need a valid visa for the proper classification. You may wonder if you will be able to enter the United States from Canada using the automatic revalidation provision which appears at 22 CFR §41.112(d). Unfortunately, this section only permits automatic revalidation of your expired visa where you are seeking re-entry after a trip solely to contiguous territory. If you leave Canada for India and then return to Canada, you will not have been solely to contiguous territory and the revalidation does not apply to you.

I heard that in 1994 Clinton signed a bill, allowing certain people who had lost their US citizenship as a result of older (and subsequently repealed) provisions of the INA to regain their citizenship. And it allowed, in certain limited circumstances, the foreign-born grandchildren of US citizens to acquire US citizenship. My grandmother "lost" her citizenship through marriage to a non-citizen. Does this help me?

You are correct in that the Immigration and Nationality Technical Corrections Act of 1994 ("INTCA") contained several provisions enabled many persons to regain their citizenship. However, INTCA does not directly give grandchildren born abroad a right of citizenship as you suggested. The effect of INTCA is discussed in greater detail in my article on U.S. citizenship acquired by birth abroad. However, I will briefly discuss it here.

Prior to INTCA, a considerable number of children born to one alien parent and one U.S. citizen parent lost their citizenship as a result of their failure to satisfy the various retention requirements which were in effect from May 24, 1934 to October 10, 1978. INA §324(d)(1) now provides that a person who was a U.S. citizen at birth who lost citizenship for failing to meet certain physical presence retention requirements in effect before October 10, 1978 will, upon taking the oath of allegiance, once again be considered be a U.S. citizen and have the status of a U.S. citizen by birth. In addition, U.S. citizen mothers could not transmit citizenship to children born abroad prior to May 24, 1934. However, INA §301(h) now provides that any person born before noon (Eastern Standard Time) on May 24, 1934 outside the U.S. to an alien father and a U.S. citizen mother who resided in the U.S. is considered to be a U.S. citizen at birth. The provision is to be retroactively applied as though the amendment had been made at the time of the person's birth.

INTCA has nothing to do with the issue of loss of citizenship resulting from marriage to an alien. It is true that women who lost their United States citizenship because of their marriage to an alien before September 22, 1922 or by marriage to an alien ineligible for citizenship between September 22, 1922 and March 3, 1931 may now naturalize under the conditions set out in § 324(a) of the INA (they must naturalize since their citizenship is not conferred retroactively). However, this provision was not amended by INTCA in 1994, but rather by the Immigration Technical Corrections Act of 1988 and the Immigration Act of 1990.

Grandparents cannot directly transmit citizenship to grandchildren and INTCA did not change this. Only parents can transmit U.S. citizenship to children. However, if your grandparent was able to transmit U.S. citizenship to you in accordance with the laws in effect at the time of your parent's birth and your parents can transmit U.S. citizenship to you in accordance with the laws in effect at the time or your birth, your grandparents may perhaps be credited with indirectly conferring U.S. citizenship to you. However, this requires both grandparent AND parent to have complied with the transmission requirements in effect at the applicable times.

I am a Canadian citizen, an "engineering technologist", and married to an American citizen. I applied for a position in the US, was interviewed and told that the job was mine if I could get a visa. I called the US consulate and was told that since I was married to an American it would be best to apply for immigrant status. I did, and was told it could take a while, but went ahead anyway. Now I find out, after viewing your web site, that I could have used a TN visa to obtain entry, but because of dual intent, I can not. The position will probably close because the employer is unwilling to wait. Is it possible to revoke ones petition after the fact, to claim that one did not really want immigrant status, only the position?

My article on the TN category does not exactly say that you cannot seek TN status. However, the fact that you have an approved petition for permanent residence will make overcoming the presumption of immigrant intent under INA §214(b) much harder to accomplish. At this stage, you appear to have three options:

You can keep your immigrant petition going and apply for a TN. There is no official form to complete at the border so there is no written question asking you about immigrant petitions. However, if they specifically ask about the petition (and it is possible that they will), you must disclose it (material misrepresentation is a serious ground of exclusion and is best avoided). The mere presence of an approved immigrant petition is not conclusive proof of immigrant intent. Nevertheless, you will have an uphill battle proving that you really don't have immigrant intent. The TN is still an option but you must be willing to assume some risk of being denied entry.
You can keep your immigrant petition going and apply for an H-1B. The INA specifically recognizes dual intent for the H-1B. Please refer to my article on the H-1B for additional information regarding this category. An H-1B generally requires that the job require a bachelor degree in the field of specialty as a minimum requirement or it will not be considered a specialty occupation. If you have a two year college diploma and some work experience may be able to establish equivalency to a bachelor degree so that you are eligible. However, the H-1B is inconvenient to use for reasons already discussed in my H-1B article.
You can drop your petition and apply for TN. At that point, I believe you can honestly say that you do not have any intention of becoming an immigrant at that time. This should overcome the issue of immigrant intent. You would lose your priority date but if your visa category is current this should not detrimentally affect future processing. If you wait 60 days or more before filing for permanent residence again, you should avoid any allegation of fraud or preconceived intent. With luck, by the time you finish your immigrant processing (perhaps 10 months), you will not have to file for a renewal. Unfortunately, once you refile for your permanent residence, the immigrant intent problem will arise again and you run the risk of being denied entry under INA §214(b).

If you are unable or unwilling to do the H-1B, choose the first option. In my opinion, the risk of being denied entry based on the mere fact that you have an approved petition is relatively small. You should know that some attorneys choose to take a more conservative position and switch to an H-1B before filing for permanent residence. However, as I said before the existence of an approved petition for permanent residence is not conclusive proof of immigrant intent, only evidence of such intent. In the event that you are denied entry because of immigrant intent and cannot overcome this finding, you can consider the fighting the issue in an exclusion hearing or trying the second or third option.