Applying green card while on TN1. Reentry whi green card application in progress
- Thread starter chikloo
- Start date
Thank you for your response. I have been given conflicting information online immigration lawyer websites like the following. (Do not know if they are up to date or correct)boltz said:
1. You can apply green card but you cannot renew your TN if I don't get green card within renewal timeline.
2. Some says what you say that have to change status to H1 or L1
3. In another it says re-entry alone will be problem.
4. Another website says there will be no problem for reentry if I can apply for advance parole for travelling outside of US.
Have you or any of your friends have/had first hand experience/knowledge on the above. I don't want to pursue H1 rather I would work here with the same employer in Canada for a year and then transfer on L1.
Canadiandesi2006
Champion Member
- Mar 6, 2014
- 41
- Visa Office......
- Scarborough, Toronto
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- Oct 2015 (Re-applied)
I guess, workers on TN visa are NOT eligible for the Green Card. However, workers on H1B visa are eligible to apply for Green Card.chikloo said:
I read sometime back, if workers on TN visa give indication of their interest in GC, they might be barred from visiting USA or future TN...
I dont remember exactly the details but it does have some adverse consequences.
Better do thorough research and if possible consult immigration attorneys before you take any step in that direction.
Here is a summary of everything you wanted to know about applying for AOS in EB category while on a TN:
Beware that this post is over 15 pages long (when printed), so hang in there, keep reading....But when you're done you should be a lot more informed about the process than you ever wanted to be.
Preamble:
I am not a lawyer, nor am I a self-proclaimed expert on every immigration issue, but rather this post is just a summary of the research that I have collected over the few years that it took for my case to be approved, and what I have documented here, I know to be true, not only from my personal experience but by the experiences shared by others as well. When I first started my case in 2000, there were very few sources that I could turn to in order to understand the process of filing AOS from TN status. Very few people thought it was possible, much less legal, and very few lawyers were aware of the pitfalls. The lawyers who knew the “tricks of the trade” charged an arm and a leg for their services. Many people on this forum were convinced that I was breaking the law, in some shape or form, and that my case would inevitably be denied. Having no support system, except my trusty lawyer, my stress level went up since I could not corroborate his statements anywhere in a coherent manner that was NOT written in legalese. At times it got me depressed and scared, that maybe the others were right and this also drove me to find out the truth. They were wrong, but by goal is not to claim revenge, but rather provide a place for people in a similar situation to turn for information, to educate those that blatantly and blindly claim one cannot apply for AOS from TN status, and at minimum, support those that are embarking on this journey to show them that this is in fact legal, and of course possible. I have collected supporting memos and quotes should the need arise to “convince” an uninformed lawyer or two as well. I offer you this free advice. Do with it as you will.
Many people, even many qualified lawyers are under the wrong impression that a person in TN status cannot file for Adjustment of Status, simply based on the fact that TN status does not allow for dual intent. (See Quote #5 in Appendix C below) All this really means is that once a person in TN status has shown clear immigrant intent, they are no longer eligible to obtain or renew their TN and TD status. Another misconception is that an I-140 shows clear immigrant intent. This has been confirmed to be untrue by both the former director of INS and the Nebraska Service Center, since an I-140 is filed by the COMPANY, and not the beneficiary. (See appendix C below for all relevant quotes, especially quote #1) Only a pending I-485 shows clear immigrant intent, therefore once you have filed an I-485, you are no longer eligible for TN status. To this point, many people ask what happens to their TN status once the I-485 is filed. The following pages explain this in greater detail, but as a summary, this is what you should know:
Once the I-485 is filed, you will remain in TN/TD status until one of the following happens:
a) Your TN expires. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
b) Your spouse or children’s TD expires but your TN has not. They are now in AOS Pending status, depending on which one expired. They should use their EAD and AP accordingly.
c) You leave the US and reenter using your AP (NB: you cannot reenter using your TN). You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
d) Either your son/daughter or your wife leave the US and reenter using their AP, but you are not with them on the trip. They are now in AOS Pending status. They should use their EAD and AP accordingly. You are still in TN status.
e) You use your EAD to work at a different job, or at a secondary job. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
f) Your spouse uses her EAD to work. She is in AOS Pending status now. (S)he should remember to use her AP instead of her TD when traveling. You are still on TN status.
g) You present your EAD to your current employer and file a new I-9. You and your family are all in AOS Pending status now.
h) You get laid off or quit without a new job lined up. You and your family are all in AOS Pending status now. Your family needs to use their EADs accordingly, and you all need to use an AP to travel instead of your TN/TD.
i) Your I-485 gets approved together with your family. You are now in permanent resident status. You and your family will use their Green Cards to travel.
j) Your I-485 gets denied. You and your family are out of status. Your TN is not valid. Your EAD is not valid. Your AP is not valid. Your lawyer should file a MTR ASAP, or if not then you should leave the US immediately.
Overview: TN -> PERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
Stage 1: PERM
1) You need to file for PERM if you don't qualify for EB1 (i.e. Employment Based 1st Preference), most people don't qualify for EB1. If you feel you qualify for EB1 and you want to skip PERM, then get a lawyer's opinion, the process of proving that you qualify for EB1 is not always straightforward. After filing PERM keep renewing your TN as you normally would either via mail, or at the POE / PFI. You can continue to travel and work using your TN at this stage. You can guesstimate that it would take 12-18 months to get your PERM approved, plus the time it takes to put any required job postings prior to filing PERM (an additional 3-6 months). Under the new regulation, an approved Labor Certification will expire after 180 days if an I-140 is not filed to proceed with the case. Some folks feel they need to wait to file for the I-140 until the I-485 priority date is current. There is really no advantage to waiting. In fact I recommend filing the I-140 ASAP after your perm is approved, and I will mention this in more detail in the following steps.This guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 2: PERM -> I-140
2) After the PERM gets approved, file your I-140. Do not file your I-485 concurrently. (Only avoid concurrent application if you are unsure of your I-140 getting approved easily, or are wary of the common risk of getting you I-140 delayed due to multiple RFE's.) (See below for my opinion on this point in Appendix A). Renew your TN via mail if necessary (not at the POE/PFI). The reason for this is that some less experienced officers at the POE/PFI may incorrectly deny you entry in TN status when you attempt to renew and they see that you have a pending I-140, so to avoid this error, renew by mail at this stage. NSC has clearly stated that this is acceptable. See the quote in appendix C below labeled "NSC Backs Off I-140/TN Policy Change" for more info. Although as of 2006, TN extensions filed by mail are sent to the Vermont Service Center, (instead of the Nebraska Service Center), I am of the opinion that VSC will adhere to NSC's policy, since this policy has been in place since the days of the now defunct INS in 1996, and later clarified by NSC itself in 2002, and therefore there is no apparent reason why VSC would not follow suit. When renewing your TN using form I-129, the question that says "Has an immigrant petition ever been filed for you?", you must answer "yes", since at this point, an I-140 has already been filed by your company with your name on it. The company has indeed filed an immigrant petition, but this is not considered immigrant intent, since YOU did not file a petition yet. You can continue to travel and work using your TN.
Although I mention that you could continue to travel using your TN, in practice, I would recommend against leaving the US until step 7. Try to plan to stay in the country until then. There have been some extremely rare examples where some people have had problems re-entering the US in TN status while their I-140 is approved/pending. This is usually due to the fact that the officer at the POE/PFI is not aware of the NSC policy, or simply does not want to abide by it, since NSC belongs to USCIS and (s)he does not work for NSC nor USCIS, but rather (s)he works for CBP. More importantly, do not apply for a TN with a new company once you've filed an I-140, this definitely sets off a flag at the POE.
3) After your I-140 is approved, verify that your priority date is current, and make sure that you have at least 6 months left on your TN, preferably 10 months. If so, proceed to step 4. If not, apply for a new TN now, and also apply for new a new TD for each of your dependants now. I recommend you use premium processing for your TN/TD so as to not hold up your I-485 application any further (i.e. step 4). Remember to answer "yes" to the immigrant petition question as mentioned above in step 2. If your priority date is not current, keep renewing your TN and your dependants’ TDs until your priority date becomes current. Once the PD is current, make sure you have 6 months left on your TN and proceed to step 4. You can guesstimate that it may take anywhere from 6-12 months to get your I-140 approved, depending on how many RFEs you get, and the current load that USCIS is dealing with at the time. Again, this guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 3: PERM -> I-140 -> I-485+EAD+AP
4) Check the priority dates for your employment-based category on the Department of State Visa Bulletin website AND MAKE SURE THAT YOU CAN FILE: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html The priority date (PD) for your I-485 is the filing date of your Labor Certification, and this will determine if you can file your I-485 today or not. The country of chargeability is determined by your birth country, regardless of any other citizenships you may have received via naturalization. Some countries grant you citizenship based on the fact that your parent(s) have citizenship of that country. For the purposes of determining your country of chargeability this citizenship is not relevant. The country of chargeability is based solely on your country of birth. Once your I-140 is approved, and your priority date is current, and you have a TN that is good for at least 6 to 10 months then and only then should you apply for your I-485. Apply for your Employment Authorization Document (EAD), and your Advance Parole (AP) at the same time. Your TD dependants should also apply for their I-485, EAD and AP now, and you will need to file an Affidavit of Support for each of your dependants, all at the same time. For your EAD use form I-765, and AP use form I-131. For the Affidavit of Support use form I-134 instead of I-864 which is primarily used for family based cases. It may take anywhere from a few months to several years for your priority date to become current depending on your country of chargeability, and your EB category. This fluctuates as time goes on, almost as quickly as stock prices, so there is no solid way to even give a valid guesstimate here.
5) Do not leave the United States between step 4 and step 7. You can continue to work using your TN, but you cannot travel using your TN, nor can your TD dependants travel using their TD. Never apply for a new TN ever again. If you leave between steps 4 and 7, your I-485 will be considered abandoned, and you won't be eligible for a new TN. Basically if you leave at this point, you can't come back, unless you get some other kind of visa, (H1, L1, etc) and you'll have to re-file your I-485. Bad...bad...bad…
6) If your EAD does not arrive within 90 days after the receipt date (found on your EAD receipt notice), schedule an appointment at the district office using InfoPass and apply for an interim EAD. (this is why you needed to have at least 6 months left on your TN as mentioned in step 3.) I say 6 months, because the 90 days starts ticking after USCIS "receives" your EAD application. If you have ANY pending RFE’s , then this 90 day rule does not apply. If USPS/FedEx/UPS have delivery issues, then that would delay everything. If it takes USCIS a while to get the application into their system that may be a delay. It may take a few weeks for your InfoPass appointment, even after you schedule it, depending on availability, plus, once you go get the Interim EAD, you will not be issued it on the spot, as they will simply inform the service center that your EAD is pending more than 90 days. You will not get it at the local office. There may be an additional delay of a week or so before you actually get the EAD. So although you can tell the local office your EAD has been pending for 90 days, its better to leave a buffer of a few months on your TN in step 3. Otherwise if your TN expires, and you don’t have a valid EAD in your hand yet, then you must take an unpaid leave of absence from work and ensure that this leave is well documented.
i-EADs used to be issued at the local office, but as of Oct 1st, 2006 form I-688B, the Employment Authorization Card (a.k.a. i-EAD, or interim EAD), will no longer be issued at the local office, and only form I-766, Employment Authorization Document (EAD), will only be issued at the service center, but the 90 day rule still applies as mentioned. All EADs must be adjudicated within 70 days so that the applicant received the EAD within 90 days.
7) Once your Advance Parole is approved, you can travel abroad. If you travel using your Advance Parole, upon re-entry to the US, you will be in I-485 pending status, not in TN status. Should you need to travel, you'll need to show your Advance Parole document (not a photocopy) and your valid passport to the CBP officer upon reentry to the US. Remember, you are entering in “AOS pending” status, (also known as “I-485 pending” status). Do not say you are entering in “TN status”, or you will most likely be denied entry when they find that you have a pending I-485! In the rare case, they may want to see a copy of your I-485 receipt notice as well, so bring that with you just in case. You may have received 3 originals of your AP. The majority of the time the CBP officers will only ever look at and stamp one of the originals over and over again, regardless of how many trips you take, until it expires. However, there seem to be totally random variations to this scenario, such as the officer keeping one copy the first time you use your AP, or insisting on stamping all the originals you have with you. By the way, sometimes USCIS only sends 2 originals, so don't be concerned if you didn't get 3. The best thing to do is take all originals of the AP with you when you travel, but only offer one of the originals (the same one each time) to the officer until/unless he asks for more. The officer will most probably put a stamp in your passport that says "Paroled Until: mm/dd/yyyy". Ignore this date. It usually does not coincide with the date mentioned on your AP document, and quite frankly you're in status as long as your I-485 is pending anyways. I’m not really sure why they stamp that date, but it may have something to do with their procedures at the border (i.e., everyone must get a stamp, or something like that). If you need to travel, refer to the date on the AP, not the date on your passport to determine if your AP is still current. Upon using your AP, your TN status will be voided, and you'll have to provide your EAD card to your employer to update their I-9. If you are traveling with your dependants, they will also need an AP (as mentioned in step 4). As an important aside note, the law states that you must have a valid Advance Parole before departure from the United States, not upon re-entry into the United States, so don’t forget to allow time for approval before your trip, to ensure the AP is in your hand, otherwise your I-485 will be considered abandoned, and since you’ve shown immigrant intent by filing an I-485, you’re no longer eligible for another TN, so don’t allow this to happen. It could take between 2-6 months to get an approved AP, depending on the current processing dates.
8) Once your EAD is approved, you can find a second job if you so wish. In fact if your I-485 has been pending for more than 6 months, and you have an approved I-140, then you can invoke AC-21, and quit the job at your sponsoring company for a different job that matches the description in your PERM application. The same applies if you were to get terminated / laid off / or fired. Upon using your EAD, your TN is voided. All of your employers would need a new I-9 with your EAD on it, and you would be in I-485 pending status, not in TN status. If you voided your TN, you will need to use your Advance Parole when you travel for re-entering the US. On the same token your dependants can also use their own respective EAD to find jobs if your TN is voided. A privilege they were not entitled to under their TD status. If the IRS was only able to issue your dependants an ITIN number, then now they can get Social Security cards. Be cognizant that by voiding your TN status, you are also voiding your dependants’ TD status, so if they need to travel, they will need their own respective Advance Paroles at this point, as suggested in step 4.
9) If you don't travel in step 7, and you don't get a second job, or switch jobs in step 8, then you'll be in TN status until your TN expires at which point you'll be in “I-485 pending status”. You should notify your employer and file a new I-9 with your EAD information. In any case, once you are in I-485 pending status due to any of the steps outlined above, then your TD dependants are by default in I-485 pending status, and they would also need an AP for traveling at that point.
10) Keep renewing your EAD every year at least 4-6 months before it expires so that you can take advantage of step 6 if necessary. Make sure it doesn’t expire since although you'd still be in a legal status of “I-485 pending”, you would not be able to work until the new EAD arrives in the mail, and if you don’t possess a valid EAD, then you’ll need to take a leave of absence as mentioned in step 6. If your travel patterns are unpredictable, make sure that you keep renewing your AP at least 3-4 months before it expires as well. There is no such thing as an interim Advance Parole, so if you suddenly have to travel out of the United States and you don’t have a current Advance Parole, then you’ll have to delay your trip until you get your Advance Parole in your hand. Very few people have been able to get an emergency AP at the district office, but it is extremely difficult to get, since you would need to show that it is a matter of life and death (your impending death, or your dependants’ impending death, not someone else’s abroad) So, if you don’t fit this category, don’t plan on getting an emergency AP.
11) Sometime between steps 4 and 13, you will undoubtedly be instructed to go to the USCIS district office or an application support center (ASC) to get your fingerprints done. Fingerprints are only valid for 15 months, as the FBI needs to revalidate them to check if you’ve committed any crimes recently. (It’s not to check if your fingerprints changed.) If they “expire” before step 14, you’ll be instructed to go get your fingerprints done again. There is no way to systematically gauge how much longer you need to wait for your file to be adjudicated after you did your fingerprints, so don’t try to guess at this point. In addition, the USCIS will issue an FBI name check, without any involvement or knowledge of the event on your part, to be completed prior to your I-485 being adjudicated. In fact they can issue multiple name checks throughout the process. (I had 2 name checks done on my case) This is a separate process from the fingerprints, and can happen before or after you had your fingerprints done. Fingerprint results generally are available in a day or two, and you can check with the FBI to verify that they sent the response back to USCIS. A name check however can take a few months. Some unlucky individuals can get stuck in this process for a year or more. You can verify the status of your “name check” by emailing the FBI. If the FBI confirms that they have sent the results back to the USCIS, and your case has been pending for an inordinate amount of time, but when you asked the USCIS, the USCIS denies ever having received them, then you should contact a congressman, to help move this through the wonderfully bureaucratic system. This situation often happens to people from special registration countries, but can unfortunately affect others as well, since the communication channel between the FBI and the USCIS has not been ironed out since they all merged under Homeland Security.
12) As you are anxiously awaiting your case to get approved, you might be surprised to get a Request for Evidence (RFE) asking you to provide updated documentation or even possibly missing information that may or may not have been initially requested in the original application. An RFE is not necessarily a bad thing, if you know you have a legitimate case, and if you have the documentation to provide to satisfy the RFE. Make sure you send back your reply ASAP, since if the evidence is not received in a timely fashion, your case will get denied.
12a) Once your I-140 is approved, and your I-485 has been pending for more than 6 months, then you can take advantage of AC21 and switch jobs. You also qualify for AC21 if you get laid off or fired. The new job must match the job description used on your original PERM. No paper work needs to be filed at this time, but you should prepare your new company to give you a job offer letter with a job description matching the one on the PERM application, in case you get an RFE from USCIS asking for proof of employment. AC21 also protects you if the original company had revoked the I-140. This would cause an intent to deny the I-485, so you would need to send the new employment letter, along with a quote of the AC21 law.
12b) Some cases get lost, or misplaced. Its a actually a miracle that more case don't get lost, but if you have confirmed with the FBI that your name check is complete, and USCIS has confirmed that they have the response, and your priority date has been current for quite a while (more than a year) and the current I-485 processing date is way overdue, then you still have a few options, depending on how much money you want to invest. Start with a senator, or a congressman. They may be able to find out more about your case. Next you can file writ of mandamus, to force the USCIS to disclose information about your case. The theory behind filing a write of mandamus is that they would need to take your case out of storage, and then they would realize that its way overdue, and send it to the processing department, all this while they respond to the writ of mandamus. The last option is to sue USCIS. The case would never go to court, but the second they pull you case out of storage to prepare for the lawsuit, they would realize your case is overdue, and process it. The last option is the costliest since you would need a lawyer to actually file a lawsuit. Hopefully it doesn't come to this, but just some tips if you do fall into step 12b. Here is a good link that describes some steps you can take in detail: http://www.immigrationportal.com/showthread.php?t=214587
13) Step 13. Bad Luck. In the rare instance that your I-485 gets denied you would be out of status immediately, and so will your dependants. At this point your EAD and AP are also invalid, and you should stop working, and cancel any trips abroad. You would need to apply for a motion to reopen (MTR) as soon as possible. If you don’t send it in time, the whole case will be over with. Do not waste any time, and get a good immigration lawyer involved ASAP, at any expense. Once your MTR is accepted, you can work using your EAD again. (This situation is very very rare, so don’t worry about this one, and this is not at all unique to TN cases, since the same situation would happen if your H1b had expired after having applied for I-485, never to be extended afterwards, and your I-485 were to get denied).
Approval: PERM -> I-140 -> I-485+EAD+AP -> GC
14) Eventually your I-485 will get approved, either directly from the service center, or if you’re one of the rare few, you might get an interview like me at the district office. It might be a long wait, so be ready to be patient. If you had your biometrics (photo, digital signature and index finger print) taken at the same time that you had your fingerprints taken in step 11 then your card should arrive in the mail within a matter of weeks or months. If you didn’t get your biometrics done, then you would get a letter telling you to go to the district office and bring a passport photo to get your temporary I-551 stamp in you passport, at which time they would take your biometrics. If you got scheduled for an interview at the district office, and all goes well and you’ll get your approval right then and there. If you’re not approved on the spot then the officer probably wants to see some additional info (sort of like a verbal RFE) and you may need to return or fax it to the officer. Once approved, the adjudicating officer will order your card to be made for you at that time, as long as your priority date is current, and your name check is complete. Your status will change from I-485 pending to permanent resident status. You might get an I-181 Welcome Notice, welcoming you into the United States as a permanent resident. For some random reason not everyone gets the welcome letter, but its not required. Other people get multiple (I got 6) Welcome Notices. If you or your dependants have a social security card that says "VALID ONLY WITH WORK AUTHORIZATION" then you might want to consider getting an updated card, to reduce confusion from any future employers. If your card does not say this, then there is no need to update it. Either way, your SS number will remain the same.
Congrats! You've completed the process!
15) If your card shows up with errors, you’ll have to file an I-90 to correct it. It should be free of charge if your I-485 application has the correct information, and the error is by fault of USCIS.
16) If your card never shows up, and a year has elapsed since your I-485 was approved, then you’ll need to file a G-731 to find out what ever happened to the card. Also you should make an Infopass appointment and get another I-551 passport stamp in the interim.
17) Once you have a green card, or an I-551 passport stamp, do not leave the US for more than 12 months at a time without first getting a reentry permit by filing Form I-131, “Application for Travel Document” at least 30 days prior to your departure. This will allow you to be out of the US for up to 2 years without losing your green card. It cannot be extended beyond 2 years. If you think you may have to leave the United States before the reentry permit is received, you may have it sent to a U.S. Consulate or USCIS office overseas for pick up. There is a place on Form I-131 to furnish the information necessary to receive the reentry permit outside of the United States. However, even though you may receive the reentry permit overseas, the application must be submitted while you are still in the United States.
Form N-470 (Application to Preserve Residence for Naturalization Purposes) must be filed with USCIS prior to departure from the United States. This form is for lawful permanent residents who must leave the United States for certain employment purposes and wish to preserve their immigrant status in order to pursue naturalization.
If you leave for more than a year without filing an I-131, or if you filed an I-131 and leave for more than 2 years then your only chance to get back is to apply for an SB-1 at the local US consulate at least 3 months in advance. If you need an SB-1 do not attempt to return to the US without one, as you will run into tons of trouble at the POE. An SB-1 may be a little tricky since you will need to prove that your extended leave was not intentional. To qualify for this status, you must show that: a)You were a lawful permanent resident when you departed the United States; b) When you departed, you intended to return to the United States and you have maintained this intent; c) You are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond your control and for which you were not responsible; and d)You are eligible for the immigrant visa in all other respects. If you need to file for SB-1 you should probably get a good lawyer to help you state your case to the US consulate abroad.
If the returning Resident (SB-1) visa is refused on the grounds that you have given up your residence in the United States, it may or may not be possible to obtain a nonimmigrant visa such as a B1/B2, or TN, depending on whether you have established a residence abroad to which you will return. If you cannot submit convincing evidence of compelling ties abroad, you may have to apply for green card all ovver again on the same basis by which you immigrated originally, if that is even possible.
Note that if you leave for more than 6 months, but less than 12, you don’t need a reentry permit, but this will disrupt your continuous stay requirement for the purposes of citizenship as mentioned in step 19 below. If you leave for less than 6 months, then you don't need to file anything special.
18) If you lose your card, you’ll need to file an I-90 to get a replacement. Beware that they are VERY expensive, unlike a driver’s license, so try not to lose it, and you can’t leave the US without one, unless you get another temporary I-551 stamp.
Total Guesstimated Timeframe:
Everyone wants to now how long all this takes. I'm not a genie, nor do I have a crystal ball. Plan on 3-6 years. That's a ballpark figure that is wide enough to cover 99% of cases. Personally it took me 50 months from the day I posted my first newspaper ad, until I had my green card in my hand. Some people on this forum have gotten it in half that time. A colleague of mine got his card 60 months after the first ad, while another colleague got his in 18 months. 4 years seems to be the average. It all depends on how lucky you are. Las Vegas should have a betting pool for this.
CitizenshipERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
19) Fifty-Seven months after your I-485 approval date, you can mail the application for US citizenship by filing an N-400 if you were present in the US for a total of 30 months within the last 5 years, without any trips abroad longer than 6 months. Remember to keep track of all your travel dates when you left and entered the US, and also all of your employment start and end dates. You’ll need this for the N-400. at the time of filing the N-400, you need to have lived at the same address for the last 3 months, so if you plan on moving, make sure to plan your move way before you apply for citizenship. I wouldn't recommend moving AFTER you file, since any correspondence may go to you old address, and may never get forwarded. Sometimes this is not an option, and you just need to take the chance that the mail will get to you. You can keep any other citizenship(s) when you get your US citizenship, if those countries allow you to have multiple citizenships. Canada for example allows you to have both, so you would be a dual citizen in this case.
Beware that this post is over 15 pages long (when printed), so hang in there, keep reading....But when you're done you should be a lot more informed about the process than you ever wanted to be.
Preamble:
I am not a lawyer, nor am I a self-proclaimed expert on every immigration issue, but rather this post is just a summary of the research that I have collected over the few years that it took for my case to be approved, and what I have documented here, I know to be true, not only from my personal experience but by the experiences shared by others as well. When I first started my case in 2000, there were very few sources that I could turn to in order to understand the process of filing AOS from TN status. Very few people thought it was possible, much less legal, and very few lawyers were aware of the pitfalls. The lawyers who knew the “tricks of the trade” charged an arm and a leg for their services. Many people on this forum were convinced that I was breaking the law, in some shape or form, and that my case would inevitably be denied. Having no support system, except my trusty lawyer, my stress level went up since I could not corroborate his statements anywhere in a coherent manner that was NOT written in legalese. At times it got me depressed and scared, that maybe the others were right and this also drove me to find out the truth. They were wrong, but by goal is not to claim revenge, but rather provide a place for people in a similar situation to turn for information, to educate those that blatantly and blindly claim one cannot apply for AOS from TN status, and at minimum, support those that are embarking on this journey to show them that this is in fact legal, and of course possible. I have collected supporting memos and quotes should the need arise to “convince” an uninformed lawyer or two as well. I offer you this free advice. Do with it as you will.
Many people, even many qualified lawyers are under the wrong impression that a person in TN status cannot file for Adjustment of Status, simply based on the fact that TN status does not allow for dual intent. (See Quote #5 in Appendix C below) All this really means is that once a person in TN status has shown clear immigrant intent, they are no longer eligible to obtain or renew their TN and TD status. Another misconception is that an I-140 shows clear immigrant intent. This has been confirmed to be untrue by both the former director of INS and the Nebraska Service Center, since an I-140 is filed by the COMPANY, and not the beneficiary. (See appendix C below for all relevant quotes, especially quote #1) Only a pending I-485 shows clear immigrant intent, therefore once you have filed an I-485, you are no longer eligible for TN status. To this point, many people ask what happens to their TN status once the I-485 is filed. The following pages explain this in greater detail, but as a summary, this is what you should know:
Once the I-485 is filed, you will remain in TN/TD status until one of the following happens:
a) Your TN expires. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
b) Your spouse or children’s TD expires but your TN has not. They are now in AOS Pending status, depending on which one expired. They should use their EAD and AP accordingly.
c) You leave the US and reenter using your AP (NB: you cannot reenter using your TN). You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
d) Either your son/daughter or your wife leave the US and reenter using their AP, but you are not with them on the trip. They are now in AOS Pending status. They should use their EAD and AP accordingly. You are still in TN status.
e) You use your EAD to work at a different job, or at a secondary job. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
f) Your spouse uses her EAD to work. She is in AOS Pending status now. (S)he should remember to use her AP instead of her TD when traveling. You are still on TN status.
g) You present your EAD to your current employer and file a new I-9. You and your family are all in AOS Pending status now.
h) You get laid off or quit without a new job lined up. You and your family are all in AOS Pending status now. Your family needs to use their EADs accordingly, and you all need to use an AP to travel instead of your TN/TD.
i) Your I-485 gets approved together with your family. You are now in permanent resident status. You and your family will use their Green Cards to travel.
j) Your I-485 gets denied. You and your family are out of status. Your TN is not valid. Your EAD is not valid. Your AP is not valid. Your lawyer should file a MTR ASAP, or if not then you should leave the US immediately.
Overview: TN -> PERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
Stage 1: PERM
1) You need to file for PERM if you don't qualify for EB1 (i.e. Employment Based 1st Preference), most people don't qualify for EB1. If you feel you qualify for EB1 and you want to skip PERM, then get a lawyer's opinion, the process of proving that you qualify for EB1 is not always straightforward. After filing PERM keep renewing your TN as you normally would either via mail, or at the POE / PFI. You can continue to travel and work using your TN at this stage. You can guesstimate that it would take 12-18 months to get your PERM approved, plus the time it takes to put any required job postings prior to filing PERM (an additional 3-6 months). Under the new regulation, an approved Labor Certification will expire after 180 days if an I-140 is not filed to proceed with the case. Some folks feel they need to wait to file for the I-140 until the I-485 priority date is current. There is really no advantage to waiting. In fact I recommend filing the I-140 ASAP after your perm is approved, and I will mention this in more detail in the following steps.This guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 2: PERM -> I-140
2) After the PERM gets approved, file your I-140. Do not file your I-485 concurrently. (Only avoid concurrent application if you are unsure of your I-140 getting approved easily, or are wary of the common risk of getting you I-140 delayed due to multiple RFE's.) (See below for my opinion on this point in Appendix A). Renew your TN via mail if necessary (not at the POE/PFI). The reason for this is that some less experienced officers at the POE/PFI may incorrectly deny you entry in TN status when you attempt to renew and they see that you have a pending I-140, so to avoid this error, renew by mail at this stage. NSC has clearly stated that this is acceptable. See the quote in appendix C below labeled "NSC Backs Off I-140/TN Policy Change" for more info. Although as of 2006, TN extensions filed by mail are sent to the Vermont Service Center, (instead of the Nebraska Service Center), I am of the opinion that VSC will adhere to NSC's policy, since this policy has been in place since the days of the now defunct INS in 1996, and later clarified by NSC itself in 2002, and therefore there is no apparent reason why VSC would not follow suit. When renewing your TN using form I-129, the question that says "Has an immigrant petition ever been filed for you?", you must answer "yes", since at this point, an I-140 has already been filed by your company with your name on it. The company has indeed filed an immigrant petition, but this is not considered immigrant intent, since YOU did not file a petition yet. You can continue to travel and work using your TN.
Although I mention that you could continue to travel using your TN, in practice, I would recommend against leaving the US until step 7. Try to plan to stay in the country until then. There have been some extremely rare examples where some people have had problems re-entering the US in TN status while their I-140 is approved/pending. This is usually due to the fact that the officer at the POE/PFI is not aware of the NSC policy, or simply does not want to abide by it, since NSC belongs to USCIS and (s)he does not work for NSC nor USCIS, but rather (s)he works for CBP. More importantly, do not apply for a TN with a new company once you've filed an I-140, this definitely sets off a flag at the POE.
3) After your I-140 is approved, verify that your priority date is current, and make sure that you have at least 6 months left on your TN, preferably 10 months. If so, proceed to step 4. If not, apply for a new TN now, and also apply for new a new TD for each of your dependants now. I recommend you use premium processing for your TN/TD so as to not hold up your I-485 application any further (i.e. step 4). Remember to answer "yes" to the immigrant petition question as mentioned above in step 2. If your priority date is not current, keep renewing your TN and your dependants’ TDs until your priority date becomes current. Once the PD is current, make sure you have 6 months left on your TN and proceed to step 4. You can guesstimate that it may take anywhere from 6-12 months to get your I-140 approved, depending on how many RFEs you get, and the current load that USCIS is dealing with at the time. Again, this guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 3: PERM -> I-140 -> I-485+EAD+AP
4) Check the priority dates for your employment-based category on the Department of State Visa Bulletin website AND MAKE SURE THAT YOU CAN FILE: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html The priority date (PD) for your I-485 is the filing date of your Labor Certification, and this will determine if you can file your I-485 today or not. The country of chargeability is determined by your birth country, regardless of any other citizenships you may have received via naturalization. Some countries grant you citizenship based on the fact that your parent(s) have citizenship of that country. For the purposes of determining your country of chargeability this citizenship is not relevant. The country of chargeability is based solely on your country of birth. Once your I-140 is approved, and your priority date is current, and you have a TN that is good for at least 6 to 10 months then and only then should you apply for your I-485. Apply for your Employment Authorization Document (EAD), and your Advance Parole (AP) at the same time. Your TD dependants should also apply for their I-485, EAD and AP now, and you will need to file an Affidavit of Support for each of your dependants, all at the same time. For your EAD use form I-765, and AP use form I-131. For the Affidavit of Support use form I-134 instead of I-864 which is primarily used for family based cases. It may take anywhere from a few months to several years for your priority date to become current depending on your country of chargeability, and your EB category. This fluctuates as time goes on, almost as quickly as stock prices, so there is no solid way to even give a valid guesstimate here.
5) Do not leave the United States between step 4 and step 7. You can continue to work using your TN, but you cannot travel using your TN, nor can your TD dependants travel using their TD. Never apply for a new TN ever again. If you leave between steps 4 and 7, your I-485 will be considered abandoned, and you won't be eligible for a new TN. Basically if you leave at this point, you can't come back, unless you get some other kind of visa, (H1, L1, etc) and you'll have to re-file your I-485. Bad...bad...bad…
6) If your EAD does not arrive within 90 days after the receipt date (found on your EAD receipt notice), schedule an appointment at the district office using InfoPass and apply for an interim EAD. (this is why you needed to have at least 6 months left on your TN as mentioned in step 3.) I say 6 months, because the 90 days starts ticking after USCIS "receives" your EAD application. If you have ANY pending RFE’s , then this 90 day rule does not apply. If USPS/FedEx/UPS have delivery issues, then that would delay everything. If it takes USCIS a while to get the application into their system that may be a delay. It may take a few weeks for your InfoPass appointment, even after you schedule it, depending on availability, plus, once you go get the Interim EAD, you will not be issued it on the spot, as they will simply inform the service center that your EAD is pending more than 90 days. You will not get it at the local office. There may be an additional delay of a week or so before you actually get the EAD. So although you can tell the local office your EAD has been pending for 90 days, its better to leave a buffer of a few months on your TN in step 3. Otherwise if your TN expires, and you don’t have a valid EAD in your hand yet, then you must take an unpaid leave of absence from work and ensure that this leave is well documented.
i-EADs used to be issued at the local office, but as of Oct 1st, 2006 form I-688B, the Employment Authorization Card (a.k.a. i-EAD, or interim EAD), will no longer be issued at the local office, and only form I-766, Employment Authorization Document (EAD), will only be issued at the service center, but the 90 day rule still applies as mentioned. All EADs must be adjudicated within 70 days so that the applicant received the EAD within 90 days.
7) Once your Advance Parole is approved, you can travel abroad. If you travel using your Advance Parole, upon re-entry to the US, you will be in I-485 pending status, not in TN status. Should you need to travel, you'll need to show your Advance Parole document (not a photocopy) and your valid passport to the CBP officer upon reentry to the US. Remember, you are entering in “AOS pending” status, (also known as “I-485 pending” status). Do not say you are entering in “TN status”, or you will most likely be denied entry when they find that you have a pending I-485! In the rare case, they may want to see a copy of your I-485 receipt notice as well, so bring that with you just in case. You may have received 3 originals of your AP. The majority of the time the CBP officers will only ever look at and stamp one of the originals over and over again, regardless of how many trips you take, until it expires. However, there seem to be totally random variations to this scenario, such as the officer keeping one copy the first time you use your AP, or insisting on stamping all the originals you have with you. By the way, sometimes USCIS only sends 2 originals, so don't be concerned if you didn't get 3. The best thing to do is take all originals of the AP with you when you travel, but only offer one of the originals (the same one each time) to the officer until/unless he asks for more. The officer will most probably put a stamp in your passport that says "Paroled Until: mm/dd/yyyy". Ignore this date. It usually does not coincide with the date mentioned on your AP document, and quite frankly you're in status as long as your I-485 is pending anyways. I’m not really sure why they stamp that date, but it may have something to do with their procedures at the border (i.e., everyone must get a stamp, or something like that). If you need to travel, refer to the date on the AP, not the date on your passport to determine if your AP is still current. Upon using your AP, your TN status will be voided, and you'll have to provide your EAD card to your employer to update their I-9. If you are traveling with your dependants, they will also need an AP (as mentioned in step 4). As an important aside note, the law states that you must have a valid Advance Parole before departure from the United States, not upon re-entry into the United States, so don’t forget to allow time for approval before your trip, to ensure the AP is in your hand, otherwise your I-485 will be considered abandoned, and since you’ve shown immigrant intent by filing an I-485, you’re no longer eligible for another TN, so don’t allow this to happen. It could take between 2-6 months to get an approved AP, depending on the current processing dates.
8) Once your EAD is approved, you can find a second job if you so wish. In fact if your I-485 has been pending for more than 6 months, and you have an approved I-140, then you can invoke AC-21, and quit the job at your sponsoring company for a different job that matches the description in your PERM application. The same applies if you were to get terminated / laid off / or fired. Upon using your EAD, your TN is voided. All of your employers would need a new I-9 with your EAD on it, and you would be in I-485 pending status, not in TN status. If you voided your TN, you will need to use your Advance Parole when you travel for re-entering the US. On the same token your dependants can also use their own respective EAD to find jobs if your TN is voided. A privilege they were not entitled to under their TD status. If the IRS was only able to issue your dependants an ITIN number, then now they can get Social Security cards. Be cognizant that by voiding your TN status, you are also voiding your dependants’ TD status, so if they need to travel, they will need their own respective Advance Paroles at this point, as suggested in step 4.
9) If you don't travel in step 7, and you don't get a second job, or switch jobs in step 8, then you'll be in TN status until your TN expires at which point you'll be in “I-485 pending status”. You should notify your employer and file a new I-9 with your EAD information. In any case, once you are in I-485 pending status due to any of the steps outlined above, then your TD dependants are by default in I-485 pending status, and they would also need an AP for traveling at that point.
10) Keep renewing your EAD every year at least 4-6 months before it expires so that you can take advantage of step 6 if necessary. Make sure it doesn’t expire since although you'd still be in a legal status of “I-485 pending”, you would not be able to work until the new EAD arrives in the mail, and if you don’t possess a valid EAD, then you’ll need to take a leave of absence as mentioned in step 6. If your travel patterns are unpredictable, make sure that you keep renewing your AP at least 3-4 months before it expires as well. There is no such thing as an interim Advance Parole, so if you suddenly have to travel out of the United States and you don’t have a current Advance Parole, then you’ll have to delay your trip until you get your Advance Parole in your hand. Very few people have been able to get an emergency AP at the district office, but it is extremely difficult to get, since you would need to show that it is a matter of life and death (your impending death, or your dependants’ impending death, not someone else’s abroad) So, if you don’t fit this category, don’t plan on getting an emergency AP.
11) Sometime between steps 4 and 13, you will undoubtedly be instructed to go to the USCIS district office or an application support center (ASC) to get your fingerprints done. Fingerprints are only valid for 15 months, as the FBI needs to revalidate them to check if you’ve committed any crimes recently. (It’s not to check if your fingerprints changed.) If they “expire” before step 14, you’ll be instructed to go get your fingerprints done again. There is no way to systematically gauge how much longer you need to wait for your file to be adjudicated after you did your fingerprints, so don’t try to guess at this point. In addition, the USCIS will issue an FBI name check, without any involvement or knowledge of the event on your part, to be completed prior to your I-485 being adjudicated. In fact they can issue multiple name checks throughout the process. (I had 2 name checks done on my case) This is a separate process from the fingerprints, and can happen before or after you had your fingerprints done. Fingerprint results generally are available in a day or two, and you can check with the FBI to verify that they sent the response back to USCIS. A name check however can take a few months. Some unlucky individuals can get stuck in this process for a year or more. You can verify the status of your “name check” by emailing the FBI. If the FBI confirms that they have sent the results back to the USCIS, and your case has been pending for an inordinate amount of time, but when you asked the USCIS, the USCIS denies ever having received them, then you should contact a congressman, to help move this through the wonderfully bureaucratic system. This situation often happens to people from special registration countries, but can unfortunately affect others as well, since the communication channel between the FBI and the USCIS has not been ironed out since they all merged under Homeland Security.
12) As you are anxiously awaiting your case to get approved, you might be surprised to get a Request for Evidence (RFE) asking you to provide updated documentation or even possibly missing information that may or may not have been initially requested in the original application. An RFE is not necessarily a bad thing, if you know you have a legitimate case, and if you have the documentation to provide to satisfy the RFE. Make sure you send back your reply ASAP, since if the evidence is not received in a timely fashion, your case will get denied.
12a) Once your I-140 is approved, and your I-485 has been pending for more than 6 months, then you can take advantage of AC21 and switch jobs. You also qualify for AC21 if you get laid off or fired. The new job must match the job description used on your original PERM. No paper work needs to be filed at this time, but you should prepare your new company to give you a job offer letter with a job description matching the one on the PERM application, in case you get an RFE from USCIS asking for proof of employment. AC21 also protects you if the original company had revoked the I-140. This would cause an intent to deny the I-485, so you would need to send the new employment letter, along with a quote of the AC21 law.
12b) Some cases get lost, or misplaced. Its a actually a miracle that more case don't get lost, but if you have confirmed with the FBI that your name check is complete, and USCIS has confirmed that they have the response, and your priority date has been current for quite a while (more than a year) and the current I-485 processing date is way overdue, then you still have a few options, depending on how much money you want to invest. Start with a senator, or a congressman. They may be able to find out more about your case. Next you can file writ of mandamus, to force the USCIS to disclose information about your case. The theory behind filing a write of mandamus is that they would need to take your case out of storage, and then they would realize that its way overdue, and send it to the processing department, all this while they respond to the writ of mandamus. The last option is to sue USCIS. The case would never go to court, but the second they pull you case out of storage to prepare for the lawsuit, they would realize your case is overdue, and process it. The last option is the costliest since you would need a lawyer to actually file a lawsuit. Hopefully it doesn't come to this, but just some tips if you do fall into step 12b. Here is a good link that describes some steps you can take in detail: http://www.immigrationportal.com/showthread.php?t=214587
13) Step 13. Bad Luck. In the rare instance that your I-485 gets denied you would be out of status immediately, and so will your dependants. At this point your EAD and AP are also invalid, and you should stop working, and cancel any trips abroad. You would need to apply for a motion to reopen (MTR) as soon as possible. If you don’t send it in time, the whole case will be over with. Do not waste any time, and get a good immigration lawyer involved ASAP, at any expense. Once your MTR is accepted, you can work using your EAD again. (This situation is very very rare, so don’t worry about this one, and this is not at all unique to TN cases, since the same situation would happen if your H1b had expired after having applied for I-485, never to be extended afterwards, and your I-485 were to get denied).
Approval: PERM -> I-140 -> I-485+EAD+AP -> GC
14) Eventually your I-485 will get approved, either directly from the service center, or if you’re one of the rare few, you might get an interview like me at the district office. It might be a long wait, so be ready to be patient. If you had your biometrics (photo, digital signature and index finger print) taken at the same time that you had your fingerprints taken in step 11 then your card should arrive in the mail within a matter of weeks or months. If you didn’t get your biometrics done, then you would get a letter telling you to go to the district office and bring a passport photo to get your temporary I-551 stamp in you passport, at which time they would take your biometrics. If you got scheduled for an interview at the district office, and all goes well and you’ll get your approval right then and there. If you’re not approved on the spot then the officer probably wants to see some additional info (sort of like a verbal RFE) and you may need to return or fax it to the officer. Once approved, the adjudicating officer will order your card to be made for you at that time, as long as your priority date is current, and your name check is complete. Your status will change from I-485 pending to permanent resident status. You might get an I-181 Welcome Notice, welcoming you into the United States as a permanent resident. For some random reason not everyone gets the welcome letter, but its not required. Other people get multiple (I got 6) Welcome Notices. If you or your dependants have a social security card that says "VALID ONLY WITH WORK AUTHORIZATION" then you might want to consider getting an updated card, to reduce confusion from any future employers. If your card does not say this, then there is no need to update it. Either way, your SS number will remain the same.
Congrats! You've completed the process!
15) If your card shows up with errors, you’ll have to file an I-90 to correct it. It should be free of charge if your I-485 application has the correct information, and the error is by fault of USCIS.
16) If your card never shows up, and a year has elapsed since your I-485 was approved, then you’ll need to file a G-731 to find out what ever happened to the card. Also you should make an Infopass appointment and get another I-551 passport stamp in the interim.
17) Once you have a green card, or an I-551 passport stamp, do not leave the US for more than 12 months at a time without first getting a reentry permit by filing Form I-131, “Application for Travel Document” at least 30 days prior to your departure. This will allow you to be out of the US for up to 2 years without losing your green card. It cannot be extended beyond 2 years. If you think you may have to leave the United States before the reentry permit is received, you may have it sent to a U.S. Consulate or USCIS office overseas for pick up. There is a place on Form I-131 to furnish the information necessary to receive the reentry permit outside of the United States. However, even though you may receive the reentry permit overseas, the application must be submitted while you are still in the United States.
Form N-470 (Application to Preserve Residence for Naturalization Purposes) must be filed with USCIS prior to departure from the United States. This form is for lawful permanent residents who must leave the United States for certain employment purposes and wish to preserve their immigrant status in order to pursue naturalization.
If you leave for more than a year without filing an I-131, or if you filed an I-131 and leave for more than 2 years then your only chance to get back is to apply for an SB-1 at the local US consulate at least 3 months in advance. If you need an SB-1 do not attempt to return to the US without one, as you will run into tons of trouble at the POE. An SB-1 may be a little tricky since you will need to prove that your extended leave was not intentional. To qualify for this status, you must show that: a)You were a lawful permanent resident when you departed the United States; b) When you departed, you intended to return to the United States and you have maintained this intent; c) You are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond your control and for which you were not responsible; and d)You are eligible for the immigrant visa in all other respects. If you need to file for SB-1 you should probably get a good lawyer to help you state your case to the US consulate abroad.
If the returning Resident (SB-1) visa is refused on the grounds that you have given up your residence in the United States, it may or may not be possible to obtain a nonimmigrant visa such as a B1/B2, or TN, depending on whether you have established a residence abroad to which you will return. If you cannot submit convincing evidence of compelling ties abroad, you may have to apply for green card all ovver again on the same basis by which you immigrated originally, if that is even possible.
Note that if you leave for more than 6 months, but less than 12, you don’t need a reentry permit, but this will disrupt your continuous stay requirement for the purposes of citizenship as mentioned in step 19 below. If you leave for less than 6 months, then you don't need to file anything special.
18) If you lose your card, you’ll need to file an I-90 to get a replacement. Beware that they are VERY expensive, unlike a driver’s license, so try not to lose it, and you can’t leave the US without one, unless you get another temporary I-551 stamp.
Total Guesstimated Timeframe:
Everyone wants to now how long all this takes. I'm not a genie, nor do I have a crystal ball. Plan on 3-6 years. That's a ballpark figure that is wide enough to cover 99% of cases. Personally it took me 50 months from the day I posted my first newspaper ad, until I had my green card in my hand. Some people on this forum have gotten it in half that time. A colleague of mine got his card 60 months after the first ad, while another colleague got his in 18 months. 4 years seems to be the average. It all depends on how lucky you are. Las Vegas should have a betting pool for this.
Citizenship
ERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen 19) Fifty-Seven months after your I-485 approval date, you can mail the application for US citizenship by filing an N-400 if you were present in the US for a total of 30 months within the last 5 years, without any trips abroad longer than 6 months. Remember to keep track of all your travel dates when you left and entered the US, and also all of your employment start and end dates. You’ll need this for the N-400. at the time of filing the N-400, you need to have lived at the same address for the last 3 months, so if you plan on moving, make sure to plan your move way before you apply for citizenship. I wouldn't recommend moving AFTER you file, since any correspondence may go to you old address, and may never get forwarded. Sometimes this is not an option, and you just need to take the chance that the mail will get to you. You can keep any other citizenship(s) when you get your US citizenship, if those countries allow you to have multiple citizenships. Canada for example allows you to have both, so you would be a dual citizen in this case.
Thanks a lot for explaining in such detail. So I'm looking at 2 years from the time my company starts the green card process. Do you know about cross chargeabilty? My wife is born in UAE and went to school till her 10th grade. I have her birth certificate, 10th grade certificate and passport shows that she was born in UAE. I'm basing my TN to green card possibility based on EB2 ROW being current for UAE. Is it ok if I contact you now and then on your private message for advice.
THanks again
THanks again
Canadiandesi2006
Champion Member
- Mar 6, 2014
- 41
- Visa Office......
- Scarborough, Toronto
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- Oct 2015 (Re-applied)
Thanks for your comprehensive reply. Yes, most of the times there are ways to address any situation the secret is knowing that route. ;Dbigben3 said:Here is a summary of everything you wanted to know about applying for AOS in EB category while on a TN:
Beware that this post is over 15 pages long (when printed), so hang in there, keep reading....But when you're done you should be a lot more informed about the process than you ever wanted to be.
Preamble:
I am not a lawyer, nor am I a self-proclaimed expert on every immigration issue, but rather this post is just a summary of the research that I have collected over the few years that it took for my case to be approved, and what I have documented here, I know to be true, not only from my personal experience but by the experiences shared by others as well. When I first started my case in 2000, there were very few sources that I could turn to in order to understand the process of filing AOS from TN status. Very few people thought it was possible, much less legal, and very few lawyers were aware of the pitfalls. The lawyers who knew the “tricks of the trade” charged an arm and a leg for their services. Many people on this forum were convinced that I was breaking the law, in some shape or form, and that my case would inevitably be denied. Having no support system, except my trusty lawyer, my stress level went up since I could not corroborate his statements anywhere in a coherent manner that was NOT written in legalese. At times it got me depressed and scared, that maybe the others were right and this also drove me to find out the truth. They were wrong, but by goal is not to claim revenge, but rather provide a place for people in a similar situation to turn for information, to educate those that blatantly and blindly claim one cannot apply for AOS from TN status, and at minimum, support those that are embarking on this journey to show them that this is in fact legal, and of course possible. I have collected supporting memos and quotes should the need arise to “convince” an uninformed lawyer or two as well. I offer you this free advice. Do with it as you will.
Many people, even many qualified lawyers are under the wrong impression that a person in TN status cannot file for Adjustment of Status, simply based on the fact that TN status does not allow for dual intent. (See Quote #5 in Appendix C below) All this really means is that once a person in TN status has shown clear immigrant intent, they are no longer eligible to obtain or renew their TN and TD status. Another misconception is that an I-140 shows clear immigrant intent. This has been confirmed to be untrue by both the former director of INS and the Nebraska Service Center, since an I-140 is filed by the COMPANY, and not the beneficiary. (See appendix C below for all relevant quotes, especially quote #1) Only a pending I-485 shows clear immigrant intent, therefore once you have filed an I-485, you are no longer eligible for TN status. To this point, many people ask what happens to their TN status once the I-485 is filed. The following pages explain this in greater detail, but as a summary, this is what you should know:
Once the I-485 is filed, you will remain in TN/TD status until one of the following happens:
a) Your TN expires. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
b) Your spouse or children’s TD expires but your TN has not. They are now in AOS Pending status, depending on which one expired. They should use their EAD and AP accordingly.
c) You leave the US and reenter using your AP (NB: you cannot reenter using your TN). You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
d) Either your son/daughter or your wife leave the US and reenter using their AP, but you are not with them on the trip. They are now in AOS Pending status. They should use their EAD and AP accordingly. You are still in TN status.
e) You use your EAD to work at a different job, or at a secondary job. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
f) Your spouse uses her EAD to work. She is in AOS Pending status now. (S)he should remember to use her AP instead of her TD when traveling. You are still on TN status.
g) You present your EAD to your current employer and file a new I-9. You and your family are all in AOS Pending status now.
h) You get laid off or quit without a new job lined up. You and your family are all in AOS Pending status now. Your family needs to use their EADs accordingly, and you all need to use an AP to travel instead of your TN/TD.
i) Your I-485 gets approved together with your family. You are now in permanent resident status. You and your family will use their Green Cards to travel.
j) Your I-485 gets denied. You and your family are out of status. Your TN is not valid. Your EAD is not valid. Your AP is not valid. Your lawyer should file a MTR ASAP, or if not then you should leave the US immediately.
Overview: TN -> PERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
Stage 1: PERM
1) You need to file for PERM if you don't qualify for EB1 (i.e. Employment Based 1st Preference), most people don't qualify for EB1. If you feel you qualify for EB1 and you want to skip PERM, then get a lawyer's opinion, the process of proving that you qualify for EB1 is not always straightforward. After filing PERM keep renewing your TN as you normally would either via mail, or at the POE / PFI. You can continue to travel and work using your TN at this stage. You can guesstimate that it would take 12-18 months to get your PERM approved, plus the time it takes to put any required job postings prior to filing PERM (an additional 3-6 months). Under the new regulation, an approved Labor Certification will expire after 180 days if an I-140 is not filed to proceed with the case. Some folks feel they need to wait to file for the I-140 until the I-485 priority date is current. There is really no advantage to waiting. In fact I recommend filing the I-140 ASAP after your perm is approved, and I will mention this in more detail in the following steps.This guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 2: PERM -> I-140
2) After the PERM gets approved, file your I-140. Do not file your I-485 concurrently. (Only avoid concurrent application if you are unsure of your I-140 getting approved easily, or are wary of the common risk of getting you I-140 delayed due to multiple RFE's.) (See below for my opinion on this point in Appendix A). Renew your TN via mail if necessary (not at the POE/PFI). The reason for this is that some less experienced officers at the POE/PFI may incorrectly deny you entry in TN status when you attempt to renew and they see that you have a pending I-140, so to avoid this error, renew by mail at this stage. NSC has clearly stated that this is acceptable. See the quote in appendix C below labeled "NSC Backs Off I-140/TN Policy Change" for more info. Although as of 2006, TN extensions filed by mail are sent to the Vermont Service Center, (instead of the Nebraska Service Center), I am of the opinion that VSC will adhere to NSC's policy, since this policy has been in place since the days of the now defunct INS in 1996, and later clarified by NSC itself in 2002, and therefore there is no apparent reason why VSC would not follow suit. When renewing your TN using form I-129, the question that says "Has an immigrant petition ever been filed for you?", you must answer "yes", since at this point, an I-140 has already been filed by your company with your name on it. The company has indeed filed an immigrant petition, but this is not considered immigrant intent, since YOU did not file a petition yet. You can continue to travel and work using your TN.
Although I mention that you could continue to travel using your TN, in practice, I would recommend against leaving the US until step 7. Try to plan to stay in the country until then. There have been some extremely rare examples where some people have had problems re-entering the US in TN status while their I-140 is approved/pending. This is usually due to the fact that the officer at the POE/PFI is not aware of the NSC policy, or simply does not want to abide by it, since NSC belongs to USCIS and (s)he does not work for NSC nor USCIS, but rather (s)he works for CBP. More importantly, do not apply for a TN with a new company once you've filed an I-140, this definitely sets off a flag at the POE.
3) After your I-140 is approved, verify that your priority date is current, and make sure that you have at least 6 months left on your TN, preferably 10 months. If so, proceed to step 4. If not, apply for a new TN now, and also apply for new a new TD for each of your dependants now. I recommend you use premium processing for your TN/TD so as to not hold up your I-485 application any further (i.e. step 4). Remember to answer "yes" to the immigrant petition question as mentioned above in step 2. If your priority date is not current, keep renewing your TN and your dependants’ TDs until your priority date becomes current. Once the PD is current, make sure you have 6 months left on your TN and proceed to step 4. You can guesstimate that it may take anywhere from 6-12 months to get your I-140 approved, depending on how many RFEs you get, and the current load that USCIS is dealing with at the time. Again, this guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 3: PERM -> I-140 -> I-485+EAD+AP
4) Check the priority dates for your employment-based category on the Department of State Visa Bulletin website AND MAKE SURE THAT YOU CAN FILE: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html The priority date (PD) for your I-485 is the filing date of your Labor Certification, and this will determine if you can file your I-485 today or not. The country of chargeability is determined by your birth country, regardless of any other citizenships you may have received via naturalization. Some countries grant you citizenship based on the fact that your parent(s) have citizenship of that country. For the purposes of determining your country of chargeability this citizenship is not relevant. The country of chargeability is based solely on your country of birth. Once your I-140 is approved, and your priority date is current, and you have a TN that is good for at least 6 to 10 months then and only then should you apply for your I-485. Apply for your Employment Authorization Document (EAD), and your Advance Parole (AP) at the same time. Your TD dependants should also apply for their I-485, EAD and AP now, and you will need to file an Affidavit of Support for each of your dependants, all at the same time. For your EAD use form I-765, and AP use form I-131. For the Affidavit of Support use form I-134 instead of I-864 which is primarily used for family based cases. It may take anywhere from a few months to several years for your priority date to become current depending on your country of chargeability, and your EB category. This fluctuates as time goes on, almost as quickly as stock prices, so there is no solid way to even give a valid guesstimate here.
5) Do not leave the United States between step 4 and step 7. You can continue to work using your TN, but you cannot travel using your TN, nor can your TD dependants travel using their TD. Never apply for a new TN ever again. If you leave between steps 4 and 7, your I-485 will be considered abandoned, and you won't be eligible for a new TN. Basically if you leave at this point, you can't come back, unless you get some other kind of visa, (H1, L1, etc) and you'll have to re-file your I-485. Bad...bad...bad…
6) If your EAD does not arrive within 90 days after the receipt date (found on your EAD receipt notice), schedule an appointment at the district office using InfoPass and apply for an interim EAD. (this is why you needed to have at least 6 months left on your TN as mentioned in step 3.) I say 6 months, because the 90 days starts ticking after USCIS "receives" your EAD application. If you have ANY pending RFE’s , then this 90 day rule does not apply. If USPS/FedEx/UPS have delivery issues, then that would delay everything. If it takes USCIS a while to get the application into their system that may be a delay. It may take a few weeks for your InfoPass appointment, even after you schedule it, depending on availability, plus, once you go get the Interim EAD, you will not be issued it on the spot, as they will simply inform the service center that your EAD is pending more than 90 days. You will not get it at the local office. There may be an additional delay of a week or so before you actually get the EAD. So although you can tell the local office your EAD has been pending for 90 days, its better to leave a buffer of a few months on your TN in step 3. Otherwise if your TN expires, and you don’t have a valid EAD in your hand yet, then you must take an unpaid leave of absence from work and ensure that this leave is well documented.
i-EADs used to be issued at the local office, but as of Oct 1st, 2006 form I-688B, the Employment Authorization Card (a.k.a. i-EAD, or interim EAD), will no longer be issued at the local office, and only form I-766, Employment Authorization Document (EAD), will only be issued at the service center, but the 90 day rule still applies as mentioned. All EADs must be adjudicated within 70 days so that the applicant received the EAD within 90 days.
7) Once your Advance Parole is approved, you can travel abroad. If you travel using your Advance Parole, upon re-entry to the US, you will be in I-485 pending status, not in TN status. Should you need to travel, you'll need to show your Advance Parole document (not a photocopy) and your valid passport to the CBP officer upon reentry to the US. Remember, you are entering in “AOS pending” status, (also known as “I-485 pending” status). Do not say you are entering in “TN status”, or you will most likely be denied entry when they find that you have a pending I-485! In the rare case, they may want to see a copy of your I-485 receipt notice as well, so bring that with you just in case. You may have received 3 originals of your AP. The majority of the time the CBP officers will only ever look at and stamp one of the originals over and over again, regardless of how many trips you take, until it expires. However, there seem to be totally random variations to this scenario, such as the officer keeping one copy the first time you use your AP, or insisting on stamping all the originals you have with you. By the way, sometimes USCIS only sends 2 originals, so don't be concerned if you didn't get 3. The best thing to do is take all originals of the AP with you when you travel, but only offer one of the originals (the same one each time) to the officer until/unless he asks for more. The officer will most probably put a stamp in your passport that says "Paroled Until: mm/dd/yyyy". Ignore this date. It usually does not coincide with the date mentioned on your AP document, and quite frankly you're in status as long as your I-485 is pending anyways. I’m not really sure why they stamp that date, but it may have something to do with their procedures at the border (i.e., everyone must get a stamp, or something like that). If you need to travel, refer to the date on the AP, not the date on your passport to determine if your AP is still current. Upon using your AP, your TN status will be voided, and you'll have to provide your EAD card to your employer to update their I-9. If you are traveling with your dependants, they will also need an AP (as mentioned in step 4). As an important aside note, the law states that you must have a valid Advance Parole before departure from the United States, not upon re-entry into the United States, so don’t forget to allow time for approval before your trip, to ensure the AP is in your hand, otherwise your I-485 will be considered abandoned, and since you’ve shown immigrant intent by filing an I-485, you’re no longer eligible for another TN, so don’t allow this to happen. It could take between 2-6 months to get an approved AP, depending on the current processing dates.
8) Once your EAD is approved, you can find a second job if you so wish. In fact if your I-485 has been pending for more than 6 months, and you have an approved I-140, then you can invoke AC-21, and quit the job at your sponsoring company for a different job that matches the description in your PERM application. The same applies if you were to get terminated / laid off / or fired. Upon using your EAD, your TN is voided. All of your employers would need a new I-9 with your EAD on it, and you would be in I-485 pending status, not in TN status. If you voided your TN, you will need to use your Advance Parole when you travel for re-entering the US. On the same token your dependants can also use their own respective EAD to find jobs if your TN is voided. A privilege they were not entitled to under their TD status. If the IRS was only able to issue your dependants an ITIN number, then now they can get Social Security cards. Be cognizant that by voiding your TN status, you are also voiding your dependants’ TD status, so if they need to travel, they will need their own respective Advance Paroles at this point, as suggested in step 4.
9) If you don't travel in step 7, and you don't get a second job, or switch jobs in step 8, then you'll be in TN status until your TN expires at which point you'll be in “I-485 pending status”. You should notify your employer and file a new I-9 with your EAD information. In any case, once you are in I-485 pending status due to any of the steps outlined above, then your TD dependants are by default in I-485 pending status, and they would also need an AP for traveling at that point.
10) Keep renewing your EAD every year at least 4-6 months before it expires so that you can take advantage of step 6 if necessary. Make sure it doesn’t expire since although you'd still be in a legal status of “I-485 pending”, you would not be able to work until the new EAD arrives in the mail, and if you don’t possess a valid EAD, then you’ll need to take a leave of absence as mentioned in step 6. If your travel patterns are unpredictable, make sure that you keep renewing your AP at least 3-4 months before it expires as well. There is no such thing as an interim Advance Parole, so if you suddenly have to travel out of the United States and you don’t have a current Advance Parole, then you’ll have to delay your trip until you get your Advance Parole in your hand. Very few people have been able to get an emergency AP at the district office, but it is extremely difficult to get, since you would need to show that it is a matter of life and death (your impending death, or your dependants’ impending death, not someone else’s abroad) So, if you don’t fit this category, don’t plan on getting an emergency AP.
11) Sometime between steps 4 and 13, you will undoubtedly be instructed to go to the USCIS district office or an application support center (ASC) to get your fingerprints done. Fingerprints are only valid for 15 months, as the FBI needs to revalidate them to check if you’ve committed any crimes recently. (It’s not to check if your fingerprints changed.) If they “expire” before step 14, you’ll be instructed to go get your fingerprints done again. There is no way to systematically gauge how much longer you need to wait for your file to be adjudicated after you did your fingerprints, so don’t try to guess at this point. In addition, the USCIS will issue an FBI name check, without any involvement or knowledge of the event on your part, to be completed prior to your I-485 being adjudicated. In fact they can issue multiple name checks throughout the process. (I had 2 name checks done on my case) This is a separate process from the fingerprints, and can happen before or after you had your fingerprints done. Fingerprint results generally are available in a day or two, and you can check with the FBI to verify that they sent the response back to USCIS. A name check however can take a few months. Some unlucky individuals can get stuck in this process for a year or more. You can verify the status of your “name check” by emailing the FBI. If the FBI confirms that they have sent the results back to the USCIS, and your case has been pending for an inordinate amount of time, but when you asked the USCIS, the USCIS denies ever having received them, then you should contact a congressman, to help move this through the wonderfully bureaucratic system. This situation often happens to people from special registration countries, but can unfortunately affect others as well, since the communication channel between the FBI and the USCIS has not been ironed out since they all merged under Homeland Security.
12) As you are anxiously awaiting your case to get approved, you might be surprised to get a Request for Evidence (RFE) asking you to provide updated documentation or even possibly missing information that may or may not have been initially requested in the original application. An RFE is not necessarily a bad thing, if you know you have a legitimate case, and if you have the documentation to provide to satisfy the RFE. Make sure you send back your reply ASAP, since if the evidence is not received in a timely fashion, your case will get denied.
12a) Once your I-140 is approved, and your I-485 has been pending for more than 6 months, then you can take advantage of AC21 and switch jobs. You also qualify for AC21 if you get laid off or fired. The new job must match the job description used on your original PERM. No paper work needs to be filed at this time, but you should prepare your new company to give you a job offer letter with a job description matching the one on the PERM application, in case you get an RFE from USCIS asking for proof of employment. AC21 also protects you if the original company had revoked the I-140. This would cause an intent to deny the I-485, so you would need to send the new employment letter, along with a quote of the AC21 law.
12b) Some cases get lost, or misplaced. Its a actually a miracle that more case don't get lost, but if you have confirmed with the FBI that your name check is complete, and USCIS has confirmed that they have the response, and your priority date has been current for quite a while (more than a year) and the current I-485 processing date is way overdue, then you still have a few options, depending on how much money you want to invest. Start with a senator, or a congressman. They may be able to find out more about your case. Next you can file writ of mandamus, to force the USCIS to disclose information about your case. The theory behind filing a write of mandamus is that they would need to take your case out of storage, and then they would realize that its way overdue, and send it to the processing department, all this while they respond to the writ of mandamus. The last option is to sue USCIS. The case would never go to court, but the second they pull you case out of storage to prepare for the lawsuit, they would realize your case is overdue, and process it. The last option is the costliest since you would need a lawyer to actually file a lawsuit. Hopefully it doesn't come to this, but just some tips if you do fall into step 12b. Here is a good link that describes some steps you can take in detail: http://www.immigrationportal.com/showthread.php?t=214587
13) Step 13. Bad Luck. In the rare instance that your I-485 gets denied you would be out of status immediately, and so will your dependants. At this point your EAD and AP are also invalid, and you should stop working, and cancel any trips abroad. You would need to apply for a motion to reopen (MTR) as soon as possible. If you don’t send it in time, the whole case will be over with. Do not waste any time, and get a good immigration lawyer involved ASAP, at any expense. Once your MTR is accepted, you can work using your EAD again. (This situation is very very rare, so don’t worry about this one, and this is not at all unique to TN cases, since the same situation would happen if your H1b had expired after having applied for I-485, never to be extended afterwards, and your I-485 were to get denied).
Approval: PERM -> I-140 -> I-485+EAD+AP -> GC
14) Eventually your I-485 will get approved, either directly from the service center, or if you’re one of the rare few, you might get an interview like me at the district office. It might be a long wait, so be ready to be patient. If you had your biometrics (photo, digital signature and index finger print) taken at the same time that you had your fingerprints taken in step 11 then your card should arrive in the mail within a matter of weeks or months. If you didn’t get your biometrics done, then you would get a letter telling you to go to the district office and bring a passport photo to get your temporary I-551 stamp in you passport, at which time they would take your biometrics. If you got scheduled for an interview at the district office, and all goes well and you’ll get your approval right then and there. If you’re not approved on the spot then the officer probably wants to see some additional info (sort of like a verbal RFE) and you may need to return or fax it to the officer. Once approved, the adjudicating officer will order your card to be made for you at that time, as long as your priority date is current, and your name check is complete. Your status will change from I-485 pending to permanent resident status. You might get an I-181 Welcome Notice, welcoming you into the United States as a permanent resident. For some random reason not everyone gets the welcome letter, but its not required. Other people get multiple (I got 6) Welcome Notices. If you or your dependants have a social security card that says "VALID ONLY WITH WORK AUTHORIZATION" then you might want to consider getting an updated card, to reduce confusion from any future employers. If your card does not say this, then there is no need to update it. Either way, your SS number will remain the same.
Congrats! You've completed the process!
15) If your card shows up with errors, you’ll have to file an I-90 to correct it. It should be free of charge if your I-485 application has the correct information, and the error is by fault of USCIS.
16) If your card never shows up, and a year has elapsed since your I-485 was approved, then you’ll need to file a G-731 to find out what ever happened to the card. Also you should make an Infopass appointment and get another I-551 passport stamp in the interim.
17) Once you have a green card, or an I-551 passport stamp, do not leave the US for more than 12 months at a time without first getting a reentry permit by filing Form I-131, “Application for Travel Document” at least 30 days prior to your departure. This will allow you to be out of the US for up to 2 years without losing your green card. It cannot be extended beyond 2 years. If you think you may have to leave the United States before the reentry permit is received, you may have it sent to a U.S. Consulate or USCIS office overseas for pick up. There is a place on Form I-131 to furnish the information necessary to receive the reentry permit outside of the United States. However, even though you may receive the reentry permit overseas, the application must be submitted while you are still in the United States.
Form N-470 (Application to Preserve Residence for Naturalization Purposes) must be filed with USCIS prior to departure from the United States. This form is for lawful permanent residents who must leave the United States for certain employment purposes and wish to preserve their immigrant status in order to pursue naturalization.
If you leave for more than a year without filing an I-131, or if you filed an I-131 and leave for more than 2 years then your only chance to get back is to apply for an SB-1 at the local US consulate at least 3 months in advance. If you need an SB-1 do not attempt to return to the US without one, as you will run into tons of trouble at the POE. An SB-1 may be a little tricky since you will need to prove that your extended leave was not intentional. To qualify for this status, you must show that: a)You were a lawful permanent resident when you departed the United States; b) When you departed, you intended to return to the United States and you have maintained this intent; c) You are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond your control and for which you were not responsible; and d)You are eligible for the immigrant visa in all other respects. If you need to file for SB-1 you should probably get a good lawyer to help you state your case to the US consulate abroad.
If the returning Resident (SB-1) visa is refused on the grounds that you have given up your residence in the United States, it may or may not be possible to obtain a nonimmigrant visa such as a B1/B2, or TN, depending on whether you have established a residence abroad to which you will return. If you cannot submit convincing evidence of compelling ties abroad, you may have to apply for green card all ovver again on the same basis by which you immigrated originally, if that is even possible.
Note that if you leave for more than 6 months, but less than 12, you don’t need a reentry permit, but this will disrupt your continuous stay requirement for the purposes of citizenship as mentioned in step 19 below. If you leave for less than 6 months, then you don't need to file anything special.
18) If you lose your card, you’ll need to file an I-90 to get a replacement. Beware that they are VERY expensive, unlike a driver’s license, so try not to lose it, and you can’t leave the US without one, unless you get another temporary I-551 stamp.
Total Guesstimated Timeframe:
Everyone wants to now how long all this takes. I'm not a genie, nor do I have a crystal ball. Plan on 3-6 years. That's a ballpark figure that is wide enough to cover 99% of cases. Personally it took me 50 months from the day I posted my first newspaper ad, until I had my green card in my hand. Some people on this forum have gotten it in half that time. A colleague of mine got his card 60 months after the first ad, while another colleague got his in 18 months. 4 years seems to be the average. It all depends on how lucky you are. Las Vegas should have a betting pool for this.
Citizenship
19) Fifty-Seven months after your I-485 approval date, you can mail the application for US citizenship by filing an N-400 if you were present in the US for a total of 30 months within the last 5 years, without any trips abroad longer than 6 months. Remember to keep track of all your travel dates when you left and entered the US, and also all of your employment start and end dates. You’ll need this for the N-400. at the time of filing the N-400, you need to have lived at the same address for the last 3 months, so if you plan on moving, make sure to plan your move way before you apply for citizenship. I wouldn't recommend moving AFTER you file, since any correspondence may go to you old address, and may never get forwarded. Sometimes this is not an option, and you just need to take the chance that the mail will get to you. You can keep any other citizenship(s) when you get your US citizenship, if those countries allow you to have multiple citizenships. Canada for example allows you to have both, so you would be a dual citizen in this case.
Great post bigben3 !!!
Thanks for sharing.
Thanks for sharing.
bigben3 said:Here is a summary of everything you wanted to know about applying for AOS in EB category while on a TN:
Beware that this post is over 15 pages long (when printed), so hang in there, keep reading....But when you're done you should be a lot more informed about the process than you ever wanted to be.
Preamble:
I am not a lawyer, nor am I a self-proclaimed expert on every immigration issue, but rather this post is just a summary of the research that I have collected over the few years that it took for my case to be approved, and what I have documented here, I know to be true, not only from my personal experience but by the experiences shared by others as well. When I first started my case in 2000, there were very few sources that I could turn to in order to understand the process of filing AOS from TN status. Very few people thought it was possible, much less legal, and very few lawyers were aware of the pitfalls. The lawyers who knew the “tricks of the trade” charged an arm and a leg for their services. Many people on this forum were convinced that I was breaking the law, in some shape or form, and that my case would inevitably be denied. Having no support system, except my trusty lawyer, my stress level went up since I could not corroborate his statements anywhere in a coherent manner that was NOT written in legalese. At times it got me depressed and scared, that maybe the others were right and this also drove me to find out the truth. They were wrong, but by goal is not to claim revenge, but rather provide a place for people in a similar situation to turn for information, to educate those that blatantly and blindly claim one cannot apply for AOS from TN status, and at minimum, support those that are embarking on this journey to show them that this is in fact legal, and of course possible. I have collected supporting memos and quotes should the need arise to “convince” an uninformed lawyer or two as well. I offer you this free advice. Do with it as you will.
Many people, even many qualified lawyers are under the wrong impression that a person in TN status cannot file for Adjustment of Status, simply based on the fact that TN status does not allow for dual intent. (See Quote #5 in Appendix C below) All this really means is that once a person in TN status has shown clear immigrant intent, they are no longer eligible to obtain or renew their TN and TD status. Another misconception is that an I-140 shows clear immigrant intent. This has been confirmed to be untrue by both the former director of INS and the Nebraska Service Center, since an I-140 is filed by the COMPANY, and not the beneficiary. (See appendix C below for all relevant quotes, especially quote #1) Only a pending I-485 shows clear immigrant intent, therefore once you have filed an I-485, you are no longer eligible for TN status. To this point, many people ask what happens to their TN status once the I-485 is filed. The following pages explain this in greater detail, but as a summary, this is what you should know:
Once the I-485 is filed, you will remain in TN/TD status until one of the following happens:
a) Your TN expires. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
b) Your spouse or children’s TD expires but your TN has not. They are now in AOS Pending status, depending on which one expired. They should use their EAD and AP accordingly.
c) You leave the US and reenter using your AP (NB: you cannot reenter using your TN). You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
d) Either your son/daughter or your wife leave the US and reenter using their AP, but you are not with them on the trip. They are now in AOS Pending status. They should use their EAD and AP accordingly. You are still in TN status.
e) You use your EAD to work at a different job, or at a secondary job. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
f) Your spouse uses her EAD to work. She is in AOS Pending status now. (S)he should remember to use her AP instead of her TD when traveling. You are still on TN status.
g) You present your EAD to your current employer and file a new I-9. You and your family are all in AOS Pending status now.
h) You get laid off or quit without a new job lined up. You and your family are all in AOS Pending status now. Your family needs to use their EADs accordingly, and you all need to use an AP to travel instead of your TN/TD.
i) Your I-485 gets approved together with your family. You are now in permanent resident status. You and your family will use their Green Cards to travel.
j) Your I-485 gets denied. You and your family are out of status. Your TN is not valid. Your EAD is not valid. Your AP is not valid. Your lawyer should file a MTR ASAP, or if not then you should leave the US immediately.
Overview: TN -> PERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
Stage 1: PERM
1) You need to file for PERM if you don't qualify for EB1 (i.e. Employment Based 1st Preference), most people don't qualify for EB1. If you feel you qualify for EB1 and you want to skip PERM, then get a lawyer's opinion, the process of proving that you qualify for EB1 is not always straightforward. After filing PERM keep renewing your TN as you normally would either via mail, or at the POE / PFI. You can continue to travel and work using your TN at this stage. You can guesstimate that it would take 12-18 months to get your PERM approved, plus the time it takes to put any required job postings prior to filing PERM (an additional 3-6 months). Under the new regulation, an approved Labor Certification will expire after 180 days if an I-140 is not filed to proceed with the case. Some folks feel they need to wait to file for the I-140 until the I-485 priority date is current. There is really no advantage to waiting. In fact I recommend filing the I-140 ASAP after your perm is approved, and I will mention this in more detail in the following steps.This guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 2: PERM -> I-140
2) After the PERM gets approved, file your I-140. Do not file your I-485 concurrently. (Only avoid concurrent application if you are unsure of your I-140 getting approved easily, or are wary of the common risk of getting you I-140 delayed due to multiple RFE's.) (See below for my opinion on this point in Appendix A). Renew your TN via mail if necessary (not at the POE/PFI). The reason for this is that some less experienced officers at the POE/PFI may incorrectly deny you entry in TN status when you attempt to renew and they see that you have a pending I-140, so to avoid this error, renew by mail at this stage. NSC has clearly stated that this is acceptable. See the quote in appendix C below labeled "NSC Backs Off I-140/TN Policy Change" for more info. Although as of 2006, TN extensions filed by mail are sent to the Vermont Service Center, (instead of the Nebraska Service Center), I am of the opinion that VSC will adhere to NSC's policy, since this policy has been in place since the days of the now defunct INS in 1996, and later clarified by NSC itself in 2002, and therefore there is no apparent reason why VSC would not follow suit. When renewing your TN using form I-129, the question that says "Has an immigrant petition ever been filed for you?", you must answer "yes", since at this point, an I-140 has already been filed by your company with your name on it. The company has indeed filed an immigrant petition, but this is not considered immigrant intent, since YOU did not file a petition yet. You can continue to travel and work using your TN.
Although I mention that you could continue to travel using your TN, in practice, I would recommend against leaving the US until step 7. Try to plan to stay in the country until then. There have been some extremely rare examples where some people have had problems re-entering the US in TN status while their I-140 is approved/pending. This is usually due to the fact that the officer at the POE/PFI is not aware of the NSC policy, or simply does not want to abide by it, since NSC belongs to USCIS and (s)he does not work for NSC nor USCIS, but rather (s)he works for CBP. More importantly, do not apply for a TN with a new company once you've filed an I-140, this definitely sets off a flag at the POE.
3) After your I-140 is approved, verify that your priority date is current, and make sure that you have at least 6 months left on your TN, preferably 10 months. If so, proceed to step 4. If not, apply for a new TN now, and also apply for new a new TD for each of your dependants now. I recommend you use premium processing for your TN/TD so as to not hold up your I-485 application any further (i.e. step 4). Remember to answer "yes" to the immigrant petition question as mentioned above in step 2. If your priority date is not current, keep renewing your TN and your dependants’ TDs until your priority date becomes current. Once the PD is current, make sure you have 6 months left on your TN and proceed to step 4. You can guesstimate that it may take anywhere from 6-12 months to get your I-140 approved, depending on how many RFEs you get, and the current load that USCIS is dealing with at the time. Again, this guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 3: PERM -> I-140 -> I-485+EAD+AP
4) Check the priority dates for your employment-based category on the Department of State Visa Bulletin website AND MAKE SURE THAT YOU CAN FILE: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html The priority date (PD) for your I-485 is the filing date of your Labor Certification, and this will determine if you can file your I-485 today or not. The country of chargeability is determined by your birth country, regardless of any other citizenships you may have received via naturalization. Some countries grant you citizenship based on the fact that your parent(s) have citizenship of that country. For the purposes of determining your country of chargeability this citizenship is not relevant. The country of chargeability is based solely on your country of birth. Once your I-140 is approved, and your priority date is current, and you have a TN that is good for at least 6 to 10 months then and only then should you apply for your I-485. Apply for your Employment Authorization Document (EAD), and your Advance Parole (AP) at the same time. Your TD dependants should also apply for their I-485, EAD and AP now, and you will need to file an Affidavit of Support for each of your dependants, all at the same time. For your EAD use form I-765, and AP use form I-131. For the Affidavit of Support use form I-134 instead of I-864 which is primarily used for family based cases. It may take anywhere from a few months to several years for your priority date to become current depending on your country of chargeability, and your EB category. This fluctuates as time goes on, almost as quickly as stock prices, so there is no solid way to even give a valid guesstimate here.
5) Do not leave the United States between step 4 and step 7. You can continue to work using your TN, but you cannot travel using your TN, nor can your TD dependants travel using their TD. Never apply for a new TN ever again. If you leave between steps 4 and 7, your I-485 will be considered abandoned, and you won't be eligible for a new TN. Basically if you leave at this point, you can't come back, unless you get some other kind of visa, (H1, L1, etc) and you'll have to re-file your I-485. Bad...bad...bad…
6) If your EAD does not arrive within 90 days after the receipt date (found on your EAD receipt notice), schedule an appointment at the district office using InfoPass and apply for an interim EAD. (this is why you needed to have at least 6 months left on your TN as mentioned in step 3.) I say 6 months, because the 90 days starts ticking after USCIS "receives" your EAD application. If you have ANY pending RFE’s , then this 90 day rule does not apply. If USPS/FedEx/UPS have delivery issues, then that would delay everything. If it takes USCIS a while to get the application into their system that may be a delay. It may take a few weeks for your InfoPass appointment, even after you schedule it, depending on availability, plus, once you go get the Interim EAD, you will not be issued it on the spot, as they will simply inform the service center that your EAD is pending more than 90 days. You will not get it at the local office. There may be an additional delay of a week or so before you actually get the EAD. So although you can tell the local office your EAD has been pending for 90 days, its better to leave a buffer of a few months on your TN in step 3. Otherwise if your TN expires, and you don’t have a valid EAD in your hand yet, then you must take an unpaid leave of absence from work and ensure that this leave is well documented.
i-EADs used to be issued at the local office, but as of Oct 1st, 2006 form I-688B, the Employment Authorization Card (a.k.a. i-EAD, or interim EAD), will no longer be issued at the local office, and only form I-766, Employment Authorization Document (EAD), will only be issued at the service center, but the 90 day rule still applies as mentioned. All EADs must be adjudicated within 70 days so that the applicant received the EAD within 90 days.
7) Once your Advance Parole is approved, you can travel abroad. If you travel using your Advance Parole, upon re-entry to the US, you will be in I-485 pending status, not in TN status. Should you need to travel, you'll need to show your Advance Parole document (not a photocopy) and your valid passport to the CBP officer upon reentry to the US. Remember, you are entering in “AOS pending” status, (also known as “I-485 pending” status). Do not say you are entering in “TN status”, or you will most likely be denied entry when they find that you have a pending I-485! In the rare case, they may want to see a copy of your I-485 receipt notice as well, so bring that with you just in case. You may have received 3 originals of your AP. The majority of the time the CBP officers will only ever look at and stamp one of the originals over and over again, regardless of how many trips you take, until it expires. However, there seem to be totally random variations to this scenario, such as the officer keeping one copy the first time you use your AP, or insisting on stamping all the originals you have with you. By the way, sometimes USCIS only sends 2 originals, so don't be concerned if you didn't get 3. The best thing to do is take all originals of the AP with you when you travel, but only offer one of the originals (the same one each time) to the officer until/unless he asks for more. The officer will most probably put a stamp in your passport that says "Paroled Until: mm/dd/yyyy". Ignore this date. It usually does not coincide with the date mentioned on your AP document, and quite frankly you're in status as long as your I-485 is pending anyways. I’m not really sure why they stamp that date, but it may have something to do with their procedures at the border (i.e., everyone must get a stamp, or something like that). If you need to travel, refer to the date on the AP, not the date on your passport to determine if your AP is still current. Upon using your AP, your TN status will be voided, and you'll have to provide your EAD card to your employer to update their I-9. If you are traveling with your dependants, they will also need an AP (as mentioned in step 4). As an important aside note, the law states that you must have a valid Advance Parole before departure from the United States, not upon re-entry into the United States, so don’t forget to allow time for approval before your trip, to ensure the AP is in your hand, otherwise your I-485 will be considered abandoned, and since you’ve shown immigrant intent by filing an I-485, you’re no longer eligible for another TN, so don’t allow this to happen. It could take between 2-6 months to get an approved AP, depending on the current processing dates.
8) Once your EAD is approved, you can find a second job if you so wish. In fact if your I-485 has been pending for more than 6 months, and you have an approved I-140, then you can invoke AC-21, and quit the job at your sponsoring company for a different job that matches the description in your PERM application. The same applies if you were to get terminated / laid off / or fired. Upon using your EAD, your TN is voided. All of your employers would need a new I-9 with your EAD on it, and you would be in I-485 pending status, not in TN status. If you voided your TN, you will need to use your Advance Parole when you travel for re-entering the US. On the same token your dependants can also use their own respective EAD to find jobs if your TN is voided. A privilege they were not entitled to under their TD status. If the IRS was only able to issue your dependants an ITIN number, then now they can get Social Security cards. Be cognizant that by voiding your TN status, you are also voiding your dependants’ TD status, so if they need to travel, they will need their own respective Advance Paroles at this point, as suggested in step 4.
9) If you don't travel in step 7, and you don't get a second job, or switch jobs in step 8, then you'll be in TN status until your TN expires at which point you'll be in “I-485 pending status”. You should notify your employer and file a new I-9 with your EAD information. In any case, once you are in I-485 pending status due to any of the steps outlined above, then your TD dependants are by default in I-485 pending status, and they would also need an AP for traveling at that point.
10) Keep renewing your EAD every year at least 4-6 months before it expires so that you can take advantage of step 6 if necessary. Make sure it doesn’t expire since although you'd still be in a legal status of “I-485 pending”, you would not be able to work until the new EAD arrives in the mail, and if you don’t possess a valid EAD, then you’ll need to take a leave of absence as mentioned in step 6. If your travel patterns are unpredictable, make sure that you keep renewing your AP at least 3-4 months before it expires as well. There is no such thing as an interim Advance Parole, so if you suddenly have to travel out of the United States and you don’t have a current Advance Parole, then you’ll have to delay your trip until you get your Advance Parole in your hand. Very few people have been able to get an emergency AP at the district office, but it is extremely difficult to get, since you would need to show that it is a matter of life and death (your impending death, or your dependants’ impending death, not someone else’s abroad) So, if you don’t fit this category, don’t plan on getting an emergency AP.
11) Sometime between steps 4 and 13, you will undoubtedly be instructed to go to the USCIS district office or an application support center (ASC) to get your fingerprints done. Fingerprints are only valid for 15 months, as the FBI needs to revalidate them to check if you’ve committed any crimes recently. (It’s not to check if your fingerprints changed.) If they “expire” before step 14, you’ll be instructed to go get your fingerprints done again. There is no way to systematically gauge how much longer you need to wait for your file to be adjudicated after you did your fingerprints, so don’t try to guess at this point. In addition, the USCIS will issue an FBI name check, without any involvement or knowledge of the event on your part, to be completed prior to your I-485 being adjudicated. In fact they can issue multiple name checks throughout the process. (I had 2 name checks done on my case) This is a separate process from the fingerprints, and can happen before or after you had your fingerprints done. Fingerprint results generally are available in a day or two, and you can check with the FBI to verify that they sent the response back to USCIS. A name check however can take a few months. Some unlucky individuals can get stuck in this process for a year or more. You can verify the status of your “name check” by emailing the FBI. If the FBI confirms that they have sent the results back to the USCIS, and your case has been pending for an inordinate amount of time, but when you asked the USCIS, the USCIS denies ever having received them, then you should contact a congressman, to help move this through the wonderfully bureaucratic system. This situation often happens to people from special registration countries, but can unfortunately affect others as well, since the communication channel between the FBI and the USCIS has not been ironed out since they all merged under Homeland Security.
12) As you are anxiously awaiting your case to get approved, you might be surprised to get a Request for Evidence (RFE) asking you to provide updated documentation or even possibly missing information that may or may not have been initially requested in the original application. An RFE is not necessarily a bad thing, if you know you have a legitimate case, and if you have the documentation to provide to satisfy the RFE. Make sure you send back your reply ASAP, since if the evidence is not received in a timely fashion, your case will get denied.
12a) Once your I-140 is approved, and your I-485 has been pending for more than 6 months, then you can take advantage of AC21 and switch jobs. You also qualify for AC21 if you get laid off or fired. The new job must match the job description used on your original PERM. No paper work needs to be filed at this time, but you should prepare your new company to give you a job offer letter with a job description matching the one on the PERM application, in case you get an RFE from USCIS asking for proof of employment. AC21 also protects you if the original company had revoked the I-140. This would cause an intent to deny the I-485, so you would need to send the new employment letter, along with a quote of the AC21 law.
12b) Some cases get lost, or misplaced. Its a actually a miracle that more case don't get lost, but if you have confirmed with the FBI that your name check is complete, and USCIS has confirmed that they have the response, and your priority date has been current for quite a while (more than a year) and the current I-485 processing date is way overdue, then you still have a few options, depending on how much money you want to invest. Start with a senator, or a congressman. They may be able to find out more about your case. Next you can file writ of mandamus, to force the USCIS to disclose information about your case. The theory behind filing a write of mandamus is that they would need to take your case out of storage, and then they would realize that its way overdue, and send it to the processing department, all this while they respond to the writ of mandamus. The last option is to sue USCIS. The case would never go to court, but the second they pull you case out of storage to prepare for the lawsuit, they would realize your case is overdue, and process it. The last option is the costliest since you would need a lawyer to actually file a lawsuit. Hopefully it doesn't come to this, but just some tips if you do fall into step 12b. Here is a good link that describes some steps you can take in detail: http://www.immigrationportal.com/showthread.php?t=214587
13) Step 13. Bad Luck. In the rare instance that your I-485 gets denied you would be out of status immediately, and so will your dependants. At this point your EAD and AP are also invalid, and you should stop working, and cancel any trips abroad. You would need to apply for a motion to reopen (MTR) as soon as possible. If you don’t send it in time, the whole case will be over with. Do not waste any time, and get a good immigration lawyer involved ASAP, at any expense. Once your MTR is accepted, you can work using your EAD again. (This situation is very very rare, so don’t worry about this one, and this is not at all unique to TN cases, since the same situation would happen if your H1b had expired after having applied for I-485, never to be extended afterwards, and your I-485 were to get denied).
Approval: PERM -> I-140 -> I-485+EAD+AP -> GC
14) Eventually your I-485 will get approved, either directly from the service center, or if you’re one of the rare few, you might get an interview like me at the district office. It might be a long wait, so be ready to be patient. If you had your biometrics (photo, digital signature and index finger print) taken at the same time that you had your fingerprints taken in step 11 then your card should arrive in the mail within a matter of weeks or months. If you didn’t get your biometrics done, then you would get a letter telling you to go to the district office and bring a passport photo to get your temporary I-551 stamp in you passport, at which time they would take your biometrics. If you got scheduled for an interview at the district office, and all goes well and you’ll get your approval right then and there. If you’re not approved on the spot then the officer probably wants to see some additional info (sort of like a verbal RFE) and you may need to return or fax it to the officer. Once approved, the adjudicating officer will order your card to be made for you at that time, as long as your priority date is current, and your name check is complete. Your status will change from I-485 pending to permanent resident status. You might get an I-181 Welcome Notice, welcoming you into the United States as a permanent resident. For some random reason not everyone gets the welcome letter, but its not required. Other people get multiple (I got 6) Welcome Notices. If you or your dependants have a social security card that says "VALID ONLY WITH WORK AUTHORIZATION" then you might want to consider getting an updated card, to reduce confusion from any future employers. If your card does not say this, then there is no need to update it. Either way, your SS number will remain the same.
Congrats! You've completed the process!
15) If your card shows up with errors, you’ll have to file an I-90 to correct it. It should be free of charge if your I-485 application has the correct information, and the error is by fault of USCIS.
16) If your card never shows up, and a year has elapsed since your I-485 was approved, then you’ll need to file a G-731 to find out what ever happened to the card. Also you should make an Infopass appointment and get another I-551 passport stamp in the interim.
17) Once you have a green card, or an I-551 passport stamp, do not leave the US for more than 12 months at a time without first getting a reentry permit by filing Form I-131, “Application for Travel Document” at least 30 days prior to your departure. This will allow you to be out of the US for up to 2 years without losing your green card. It cannot be extended beyond 2 years. If you think you may have to leave the United States before the reentry permit is received, you may have it sent to a U.S. Consulate or USCIS office overseas for pick up. There is a place on Form I-131 to furnish the information necessary to receive the reentry permit outside of the United States. However, even though you may receive the reentry permit overseas, the application must be submitted while you are still in the United States.
Form N-470 (Application to Preserve Residence for Naturalization Purposes) must be filed with USCIS prior to departure from the United States. This form is for lawful permanent residents who must leave the United States for certain employment purposes and wish to preserve their immigrant status in order to pursue naturalization.
If you leave for more than a year without filing an I-131, or if you filed an I-131 and leave for more than 2 years then your only chance to get back is to apply for an SB-1 at the local US consulate at least 3 months in advance. If you need an SB-1 do not attempt to return to the US without one, as you will run into tons of trouble at the POE. An SB-1 may be a little tricky since you will need to prove that your extended leave was not intentional. To qualify for this status, you must show that: a)You were a lawful permanent resident when you departed the United States; b) When you departed, you intended to return to the United States and you have maintained this intent; c) You are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond your control and for which you were not responsible; and d)You are eligible for the immigrant visa in all other respects. If you need to file for SB-1 you should probably get a good lawyer to help you state your case to the US consulate abroad.
If the returning Resident (SB-1) visa is refused on the grounds that you have given up your residence in the United States, it may or may not be possible to obtain a nonimmigrant visa such as a B1/B2, or TN, depending on whether you have established a residence abroad to which you will return. If you cannot submit convincing evidence of compelling ties abroad, you may have to apply for green card all ovver again on the same basis by which you immigrated originally, if that is even possible.
Note that if you leave for more than 6 months, but less than 12, you don’t need a reentry permit, but this will disrupt your continuous stay requirement for the purposes of citizenship as mentioned in step 19 below. If you leave for less than 6 months, then you don't need to file anything special.
18) If you lose your card, you’ll need to file an I-90 to get a replacement. Beware that they are VERY expensive, unlike a driver’s license, so try not to lose it, and you can’t leave the US without one, unless you get another temporary I-551 stamp.
Total Guesstimated Timeframe:
Everyone wants to now how long all this takes. I'm not a genie, nor do I have a crystal ball. Plan on 3-6 years. That's a ballpark figure that is wide enough to cover 99% of cases. Personally it took me 50 months from the day I posted my first newspaper ad, until I had my green card in my hand. Some people on this forum have gotten it in half that time. A colleague of mine got his card 60 months after the first ad, while another colleague got his in 18 months. 4 years seems to be the average. It all depends on how lucky you are. Las Vegas should have a betting pool for this.
Citizenship
19) Fifty-Seven months after your I-485 approval date, you can mail the application for US citizenship by filing an N-400 if you were present in the US for a total of 30 months within the last 5 years, without any trips abroad longer than 6 months. Remember to keep track of all your travel dates when you left and entered the US, and also all of your employment start and end dates. You’ll need this for the N-400. at the time of filing the N-400, you need to have lived at the same address for the last 3 months, so if you plan on moving, make sure to plan your move way before you apply for citizenship. I wouldn't recommend moving AFTER you file, since any correspondence may go to you old address, and may never get forwarded. Sometimes this is not an option, and you just need to take the chance that the mail will get to you. You can keep any other citizenship(s) when you get your US citizenship, if those countries allow you to have multiple citizenships. Canada for example allows you to have both, so you would be a dual citizen in this case.
Do you know by any chance if a person with TN status can apply for adjustment of status (I-485) through being married to a US citizen?
bigben3 said:Here is a summary of everything you wanted to know about applying for AOS in EB category while on a TN:
Beware that this post is over 15 pages long (when printed), so hang in there, keep reading....But when you're done you should be a lot more informed about the process than you ever wanted to be.
Preamble:
I am not a lawyer, nor am I a self-proclaimed expert on every immigration issue, but rather this post is just a summary of the research that I have collected over the few years that it took for my case to be approved, and what I have documented here, I know to be true, not only from my personal experience but by the experiences shared by others as well. When I first started my case in 2000, there were very few sources that I could turn to in order to understand the process of filing AOS from TN status. Very few people thought it was possible, much less legal, and very few lawyers were aware of the pitfalls. The lawyers who knew the “tricks of the trade” charged an arm and a leg for their services. Many people on this forum were convinced that I was breaking the law, in some shape or form, and that my case would inevitably be denied. Having no support system, except my trusty lawyer, my stress level went up since I could not corroborate his statements anywhere in a coherent manner that was NOT written in legalese. At times it got me depressed and scared, that maybe the others were right and this also drove me to find out the truth. They were wrong, but by goal is not to claim revenge, but rather provide a place for people in a similar situation to turn for information, to educate those that blatantly and blindly claim one cannot apply for AOS from TN status, and at minimum, support those that are embarking on this journey to show them that this is in fact legal, and of course possible. I have collected supporting memos and quotes should the need arise to “convince” an uninformed lawyer or two as well. I offer you this free advice. Do with it as you will.
Many people, even many qualified lawyers are under the wrong impression that a person in TN status cannot file for Adjustment of Status, simply based on the fact that TN status does not allow for dual intent. (See Quote #5 in Appendix C below) All this really means is that once a person in TN status has shown clear immigrant intent, they are no longer eligible to obtain or renew their TN and TD status. Another misconception is that an I-140 shows clear immigrant intent. This has been confirmed to be untrue by both the former director of INS and the Nebraska Service Center, since an I-140 is filed by the COMPANY, and not the beneficiary. (See appendix C below for all relevant quotes, especially quote #1) Only a pending I-485 shows clear immigrant intent, therefore once you have filed an I-485, you are no longer eligible for TN status. To this point, many people ask what happens to their TN status once the I-485 is filed. The following pages explain this in greater detail, but as a summary, this is what you should know:
Once the I-485 is filed, you will remain in TN/TD status until one of the following happens:
a) Your TN expires. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
b) Your spouse or children’s TD expires but your TN has not. They are now in AOS Pending status, depending on which one expired. They should use their EAD and AP accordingly.
c) You leave the US and reenter using your AP (NB: you cannot reenter using your TN). You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
d) Either your son/daughter or your wife leave the US and reenter using their AP, but you are not with them on the trip. They are now in AOS Pending status. They should use their EAD and AP accordingly. You are still in TN status.
e) You use your EAD to work at a different job, or at a secondary job. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
f) Your spouse uses her EAD to work. She is in AOS Pending status now. (S)he should remember to use her AP instead of her TD when traveling. You are still on TN status.
g) You present your EAD to your current employer and file a new I-9. You and your family are all in AOS Pending status now.
h) You get laid off or quit without a new job lined up. You and your family are all in AOS Pending status now. Your family needs to use their EADs accordingly, and you all need to use an AP to travel instead of your TN/TD.
i) Your I-485 gets approved together with your family. You are now in permanent resident status. You and your family will use their Green Cards to travel.
j) Your I-485 gets denied. You and your family are out of status. Your TN is not valid. Your EAD is not valid. Your AP is not valid. Your lawyer should file a MTR ASAP, or if not then you should leave the US immediately.
Overview: TN -> PERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
Stage 1: PERM
1) You need to file for PERM if you don't qualify for EB1 (i.e. Employment Based 1st Preference), most people don't qualify for EB1. If you feel you qualify for EB1 and you want to skip PERM, then get a lawyer's opinion, the process of proving that you qualify for EB1 is not always straightforward. After filing PERM keep renewing your TN as you normally would either via mail, or at the POE / PFI. You can continue to travel and work using your TN at this stage. You can guesstimate that it would take 12-18 months to get your PERM approved, plus the time it takes to put any required job postings prior to filing PERM (an additional 3-6 months). Under the new regulation, an approved Labor Certification will expire after 180 days if an I-140 is not filed to proceed with the case. Some folks feel they need to wait to file for the I-140 until the I-485 priority date is current. There is really no advantage to waiting. In fact I recommend filing the I-140 ASAP after your perm is approved, and I will mention this in more detail in the following steps.This guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 2: PERM -> I-140
2) After the PERM gets approved, file your I-140. Do not file your I-485 concurrently. (Only avoid concurrent application if you are unsure of your I-140 getting approved easily, or are wary of the common risk of getting you I-140 delayed due to multiple RFE's.) (See below for my opinion on this point in Appendix A). Renew your TN via mail if necessary (not at the POE/PFI). The reason for this is that some less experienced officers at the POE/PFI may incorrectly deny you entry in TN status when you attempt to renew and they see that you have a pending I-140, so to avoid this error, renew by mail at this stage. NSC has clearly stated that this is acceptable. See the quote in appendix C below labeled "NSC Backs Off I-140/TN Policy Change" for more info. Although as of 2006, TN extensions filed by mail are sent to the Vermont Service Center, (instead of the Nebraska Service Center), I am of the opinion that VSC will adhere to NSC's policy, since this policy has been in place since the days of the now defunct INS in 1996, and later clarified by NSC itself in 2002, and therefore there is no apparent reason why VSC would not follow suit. When renewing your TN using form I-129, the question that says "Has an immigrant petition ever been filed for you?", you must answer "yes", since at this point, an I-140 has already been filed by your company with your name on it. The company has indeed filed an immigrant petition, but this is not considered immigrant intent, since YOU did not file a petition yet. You can continue to travel and work using your TN.
Although I mention that you could continue to travel using your TN, in practice, I would recommend against leaving the US until step 7. Try to plan to stay in the country until then. There have been some extremely rare examples where some people have had problems re-entering the US in TN status while their I-140 is approved/pending. This is usually due to the fact that the officer at the POE/PFI is not aware of the NSC policy, or simply does not want to abide by it, since NSC belongs to USCIS and (s)he does not work for NSC nor USCIS, but rather (s)he works for CBP. More importantly, do not apply for a TN with a new company once you've filed an I-140, this definitely sets off a flag at the POE.
3) After your I-140 is approved, verify that your priority date is current, and make sure that you have at least 6 months left on your TN, preferably 10 months. If so, proceed to step 4. If not, apply for a new TN now, and also apply for new a new TD for each of your dependants now. I recommend you use premium processing for your TN/TD so as to not hold up your I-485 application any further (i.e. step 4). Remember to answer "yes" to the immigrant petition question as mentioned above in step 2. If your priority date is not current, keep renewing your TN and your dependants’ TDs until your priority date becomes current. Once the PD is current, make sure you have 6 months left on your TN and proceed to step 4. You can guesstimate that it may take anywhere from 6-12 months to get your I-140 approved, depending on how many RFEs you get, and the current load that USCIS is dealing with at the time. Again, this guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 3: PERM -> I-140 -> I-485+EAD+AP
4) Check the priority dates for your employment-based category on the Department of State Visa Bulletin website AND MAKE SURE THAT YOU CAN FILE: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html The priority date (PD) for your I-485 is the filing date of your Labor Certification, and this will determine if you can file your I-485 today or not. The country of chargeability is determined by your birth country, regardless of any other citizenships you may have received via naturalization. Some countries grant you citizenship based on the fact that your parent(s) have citizenship of that country. For the purposes of determining your country of chargeability this citizenship is not relevant. The country of chargeability is based solely on your country of birth. Once your I-140 is approved, and your priority date is current, and you have a TN that is good for at least 6 to 10 months then and only then should you apply for your I-485. Apply for your Employment Authorization Document (EAD), and your Advance Parole (AP) at the same time. Your TD dependants should also apply for their I-485, EAD and AP now, and you will need to file an Affidavit of Support for each of your dependants, all at the same time. For your EAD use form I-765, and AP use form I-131. For the Affidavit of Support use form I-134 instead of I-864 which is primarily used for family based cases. It may take anywhere from a few months to several years for your priority date to become current depending on your country of chargeability, and your EB category. This fluctuates as time goes on, almost as quickly as stock prices, so there is no solid way to even give a valid guesstimate here.
5) Do not leave the United States between step 4 and step 7. You can continue to work using your TN, but you cannot travel using your TN, nor can your TD dependants travel using their TD. Never apply for a new TN ever again. If you leave between steps 4 and 7, your I-485 will be considered abandoned, and you won't be eligible for a new TN. Basically if you leave at this point, you can't come back, unless you get some other kind of visa, (H1, L1, etc) and you'll have to re-file your I-485. Bad...bad...bad…
6) If your EAD does not arrive within 90 days after the receipt date (found on your EAD receipt notice), schedule an appointment at the district office using InfoPass and apply for an interim EAD. (this is why you needed to have at least 6 months left on your TN as mentioned in step 3.) I say 6 months, because the 90 days starts ticking after USCIS "receives" your EAD application. If you have ANY pending RFE’s , then this 90 day rule does not apply. If USPS/FedEx/UPS have delivery issues, then that would delay everything. If it takes USCIS a while to get the application into their system that may be a delay. It may take a few weeks for your InfoPass appointment, even after you schedule it, depending on availability, plus, once you go get the Interim EAD, you will not be issued it on the spot, as they will simply inform the service center that your EAD is pending more than 90 days. You will not get it at the local office. There may be an additional delay of a week or so before you actually get the EAD. So although you can tell the local office your EAD has been pending for 90 days, its better to leave a buffer of a few months on your TN in step 3. Otherwise if your TN expires, and you don’t have a valid EAD in your hand yet, then you must take an unpaid leave of absence from work and ensure that this leave is well documented.
i-EADs used to be issued at the local office, but as of Oct 1st, 2006 form I-688B, the Employment Authorization Card (a.k.a. i-EAD, or interim EAD), will no longer be issued at the local office, and only form I-766, Employment Authorization Document (EAD), will only be issued at the service center, but the 90 day rule still applies as mentioned. All EADs must be adjudicated within 70 days so that the applicant received the EAD within 90 days.
7) Once your Advance Parole is approved, you can travel abroad. If you travel using your Advance Parole, upon re-entry to the US, you will be in I-485 pending status, not in TN status. Should you need to travel, you'll need to show your Advance Parole document (not a photocopy) and your valid passport to the CBP officer upon reentry to the US. Remember, you are entering in “AOS pending” status, (also known as “I-485 pending” status). Do not say you are entering in “TN status”, or you will most likely be denied entry when they find that you have a pending I-485! In the rare case, they may want to see a copy of your I-485 receipt notice as well, so bring that with you just in case. You may have received 3 originals of your AP. The majority of the time the CBP officers will only ever look at and stamp one of the originals over and over again, regardless of how many trips you take, until it expires. However, there seem to be totally random variations to this scenario, such as the officer keeping one copy the first time you use your AP, or insisting on stamping all the originals you have with you. By the way, sometimes USCIS only sends 2 originals, so don't be concerned if you didn't get 3. The best thing to do is take all originals of the AP with you when you travel, but only offer one of the originals (the same one each time) to the officer until/unless he asks for more. The officer will most probably put a stamp in your passport that says "Paroled Until: mm/dd/yyyy". Ignore this date. It usually does not coincide with the date mentioned on your AP document, and quite frankly you're in status as long as your I-485 is pending anyways. I’m not really sure why they stamp that date, but it may have something to do with their procedures at the border (i.e., everyone must get a stamp, or something like that). If you need to travel, refer to the date on the AP, not the date on your passport to determine if your AP is still current. Upon using your AP, your TN status will be voided, and you'll have to provide your EAD card to your employer to update their I-9. If you are traveling with your dependants, they will also need an AP (as mentioned in step 4). As an important aside note, the law states that you must have a valid Advance Parole before departure from the United States, not upon re-entry into the United States, so don’t forget to allow time for approval before your trip, to ensure the AP is in your hand, otherwise your I-485 will be considered abandoned, and since you’ve shown immigrant intent by filing an I-485, you’re no longer eligible for another TN, so don’t allow this to happen. It could take between 2-6 months to get an approved AP, depending on the current processing dates.
8) Once your EAD is approved, you can find a second job if you so wish. In fact if your I-485 has been pending for more than 6 months, and you have an approved I-140, then you can invoke AC-21, and quit the job at your sponsoring company for a different job that matches the description in your PERM application. The same applies if you were to get terminated / laid off / or fired. Upon using your EAD, your TN is voided. All of your employers would need a new I-9 with your EAD on it, and you would be in I-485 pending status, not in TN status. If you voided your TN, you will need to use your Advance Parole when you travel for re-entering the US. On the same token your dependants can also use their own respective EAD to find jobs if your TN is voided. A privilege they were not entitled to under their TD status. If the IRS was only able to issue your dependants an ITIN number, then now they can get Social Security cards. Be cognizant that by voiding your TN status, you are also voiding your dependants’ TD status, so if they need to travel, they will need their own respective Advance Paroles at this point, as suggested in step 4.
9) If you don't travel in step 7, and you don't get a second job, or switch jobs in step 8, then you'll be in TN status until your TN expires at which point you'll be in “I-485 pending status”. You should notify your employer and file a new I-9 with your EAD information. In any case, once you are in I-485 pending status due to any of the steps outlined above, then your TD dependants are by default in I-485 pending status, and they would also need an AP for traveling at that point.
10) Keep renewing your EAD every year at least 4-6 months before it expires so that you can take advantage of step 6 if necessary. Make sure it doesn’t expire since although you'd still be in a legal status of “I-485 pending”, you would not be able to work until the new EAD arrives in the mail, and if you don’t possess a valid EAD, then you’ll need to take a leave of absence as mentioned in step 6. If your travel patterns are unpredictable, make sure that you keep renewing your AP at least 3-4 months before it expires as well. There is no such thing as an interim Advance Parole, so if you suddenly have to travel out of the United States and you don’t have a current Advance Parole, then you’ll have to delay your trip until you get your Advance Parole in your hand. Very few people have been able to get an emergency AP at the district office, but it is extremely difficult to get, since you would need to show that it is a matter of life and death (your impending death, or your dependants’ impending death, not someone else’s abroad) So, if you don’t fit this category, don’t plan on getting an emergency AP.
11) Sometime between steps 4 and 13, you will undoubtedly be instructed to go to the USCIS district office or an application support center (ASC) to get your fingerprints done. Fingerprints are only valid for 15 months, as the FBI needs to revalidate them to check if you’ve committed any crimes recently. (It’s not to check if your fingerprints changed.) If they “expire” before step 14, you’ll be instructed to go get your fingerprints done again. There is no way to systematically gauge how much longer you need to wait for your file to be adjudicated after you did your fingerprints, so don’t try to guess at this point. In addition, the USCIS will issue an FBI name check, without any involvement or knowledge of the event on your part, to be completed prior to your I-485 being adjudicated. In fact they can issue multiple name checks throughout the process. (I had 2 name checks done on my case) This is a separate process from the fingerprints, and can happen before or after you had your fingerprints done. Fingerprint results generally are available in a day or two, and you can check with the FBI to verify that they sent the response back to USCIS. A name check however can take a few months. Some unlucky individuals can get stuck in this process for a year or more. You can verify the status of your “name check” by emailing the FBI. If the FBI confirms that they have sent the results back to the USCIS, and your case has been pending for an inordinate amount of time, but when you asked the USCIS, the USCIS denies ever having received them, then you should contact a congressman, to help move this through the wonderfully bureaucratic system. This situation often happens to people from special registration countries, but can unfortunately affect others as well, since the communication channel between the FBI and the USCIS has not been ironed out since they all merged under Homeland Security.
12) As you are anxiously awaiting your case to get approved, you might be surprised to get a Request for Evidence (RFE) asking you to provide updated documentation or even possibly missing information that may or may not have been initially requested in the original application. An RFE is not necessarily a bad thing, if you know you have a legitimate case, and if you have the documentation to provide to satisfy the RFE. Make sure you send back your reply ASAP, since if the evidence is not received in a timely fashion, your case will get denied.
12a) Once your I-140 is approved, and your I-485 has been pending for more than 6 months, then you can take advantage of AC21 and switch jobs. You also qualify for AC21 if you get laid off or fired. The new job must match the job description used on your original PERM. No paper work needs to be filed at this time, but you should prepare your new company to give you a job offer letter with a job description matching the one on the PERM application, in case you get an RFE from USCIS asking for proof of employment. AC21 also protects you if the original company had revoked the I-140. This would cause an intent to deny the I-485, so you would need to send the new employment letter, along with a quote of the AC21 law.
12b) Some cases get lost, or misplaced. Its a actually a miracle that more case don't get lost, but if you have confirmed with the FBI that your name check is complete, and USCIS has confirmed that they have the response, and your priority date has been current for quite a while (more than a year) and the current I-485 processing date is way overdue, then you still have a few options, depending on how much money you want to invest. Start with a senator, or a congressman. They may be able to find out more about your case. Next you can file writ of mandamus, to force the USCIS to disclose information about your case. The theory behind filing a write of mandamus is that they would need to take your case out of storage, and then they would realize that its way overdue, and send it to the processing department, all this while they respond to the writ of mandamus. The last option is to sue USCIS. The case would never go to court, but the second they pull you case out of storage to prepare for the lawsuit, they would realize your case is overdue, and process it. The last option is the costliest since you would need a lawyer to actually file a lawsuit. Hopefully it doesn't come to this, but just some tips if you do fall into step 12b. Here is a good link that describes some steps you can take in detail: http://www.immigrationportal.com/showthread.php?t=214587
13) Step 13. Bad Luck. In the rare instance that your I-485 gets denied you would be out of status immediately, and so will your dependants. At this point your EAD and AP are also invalid, and you should stop working, and cancel any trips abroad. You would need to apply for a motion to reopen (MTR) as soon as possible. If you don’t send it in time, the whole case will be over with. Do not waste any time, and get a good immigration lawyer involved ASAP, at any expense. Once your MTR is accepted, you can work using your EAD again. (This situation is very very rare, so don’t worry about this one, and this is not at all unique to TN cases, since the same situation would happen if your H1b had expired after having applied for I-485, never to be extended afterwards, and your I-485 were to get denied).
Approval: PERM -> I-140 -> I-485+EAD+AP -> GC
14) Eventually your I-485 will get approved, either directly from the service center, or if you’re one of the rare few, you might get an interview like me at the district office. It might be a long wait, so be ready to be patient. If you had your biometrics (photo, digital signature and index finger print) taken at the same time that you had your fingerprints taken in step 11 then your card should arrive in the mail within a matter of weeks or months. If you didn’t get your biometrics done, then you would get a letter telling you to go to the district office and bring a passport photo to get your temporary I-551 stamp in you passport, at which time they would take your biometrics. If you got scheduled for an interview at the district office, and all goes well and you’ll get your approval right then and there. If you’re not approved on the spot then the officer probably wants to see some additional info (sort of like a verbal RFE) and you may need to return or fax it to the officer. Once approved, the adjudicating officer will order your card to be made for you at that time, as long as your priority date is current, and your name check is complete. Your status will change from I-485 pending to permanent resident status. You might get an I-181 Welcome Notice, welcoming you into the United States as a permanent resident. For some random reason not everyone gets the welcome letter, but its not required. Other people get multiple (I got 6) Welcome Notices. If you or your dependants have a social security card that says "VALID ONLY WITH WORK AUTHORIZATION" then you might want to consider getting an updated card, to reduce confusion from any future employers. If your card does not say this, then there is no need to update it. Either way, your SS number will remain the same.
Congrats! You've completed the process!
15) If your card shows up with errors, you’ll have to file an I-90 to correct it. It should be free of charge if your I-485 application has the correct information, and the error is by fault of USCIS.
16) If your card never shows up, and a year has elapsed since your I-485 was approved, then you’ll need to file a G-731 to find out what ever happened to the card. Also you should make an Infopass appointment and get another I-551 passport stamp in the interim.
17) Once you have a green card, or an I-551 passport stamp, do not leave the US for more than 12 months at a time without first getting a reentry permit by filing Form I-131, “Application for Travel Document” at least 30 days prior to your departure. This will allow you to be out of the US for up to 2 years without losing your green card. It cannot be extended beyond 2 years. If you think you may have to leave the United States before the reentry permit is received, you may have it sent to a U.S. Consulate or USCIS office overseas for pick up. There is a place on Form I-131 to furnish the information necessary to receive the reentry permit outside of the United States. However, even though you may receive the reentry permit overseas, the application must be submitted while you are still in the United States.
Form N-470 (Application to Preserve Residence for Naturalization Purposes) must be filed with USCIS prior to departure from the United States. This form is for lawful permanent residents who must leave the United States for certain employment purposes and wish to preserve their immigrant status in order to pursue naturalization.
If you leave for more than a year without filing an I-131, or if you filed an I-131 and leave for more than 2 years then your only chance to get back is to apply for an SB-1 at the local US consulate at least 3 months in advance. If you need an SB-1 do not attempt to return to the US without one, as you will run into tons of trouble at the POE. An SB-1 may be a little tricky since you will need to prove that your extended leave was not intentional. To qualify for this status, you must show that: a)You were a lawful permanent resident when you departed the United States; b) When you departed, you intended to return to the United States and you have maintained this intent; c) You are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond your control and for which you were not responsible; and d)You are eligible for the immigrant visa in all other respects. If you need to file for SB-1 you should probably get a good lawyer to help you state your case to the US consulate abroad.
If the returning Resident (SB-1) visa is refused on the grounds that you have given up your residence in the United States, it may or may not be possible to obtain a nonimmigrant visa such as a B1/B2, or TN, depending on whether you have established a residence abroad to which you will return. If you cannot submit convincing evidence of compelling ties abroad, you may have to apply for green card all ovver again on the same basis by which you immigrated originally, if that is even possible.
Note that if you leave for more than 6 months, but less than 12, you don’t need a reentry permit, but this will disrupt your continuous stay requirement for the purposes of citizenship as mentioned in step 19 below. If you leave for less than 6 months, then you don't need to file anything special.
18) If you lose your card, you’ll need to file an I-90 to get a replacement. Beware that they are VERY expensive, unlike a driver’s license, so try not to lose it, and you can’t leave the US without one, unless you get another temporary I-551 stamp.
Total Guesstimated Timeframe:
Everyone wants to now how long all this takes. I'm not a genie, nor do I have a crystal ball. Plan on 3-6 years. That's a ballpark figure that is wide enough to cover 99% of cases. Personally it took me 50 months from the day I posted my first newspaper ad, until I had my green card in my hand. Some people on this forum have gotten it in half that time. A colleague of mine got his card 60 months after the first ad, while another colleague got his in 18 months. 4 years seems to be the average. It all depends on how lucky you are. Las Vegas should have a betting pool for this.
Citizenship
19) Fifty-Seven months after your I-485 approval date, you can mail the application for US citizenship by filing an N-400 if you were present in the US for a total of 30 months within the last 5 years, without any trips abroad longer than 6 months. Remember to keep track of all your travel dates when you left and entered the US, and also all of your employment start and end dates. You’ll need this for the N-400. at the time of filing the N-400, you need to have lived at the same address for the last 3 months, so if you plan on moving, make sure to plan your move way before you apply for citizenship. I wouldn't recommend moving AFTER you file, since any correspondence may go to you old address, and may never get forwarded. Sometimes this is not an option, and you just need to take the chance that the mail will get to you. You can keep any other citizenship(s) when you get your US citizenship, if those countries allow you to have multiple citizenships. Canada for example allows you to have both, so you would be a dual citizen in this case.
the route is - TN to H1 to I 485 filing (green card filing in US). Unless you are Phd and fall under EB 1 category where your research and extraordinary contribution can put you in EB1 category, there is no way that you can directly convert TN into US Green Card.boltz said:
If you are TN as a University Professer or Scientist you can't get into EB1 category.
TN means worker from Mexico or Canada under NAFTA agreement that's it. Marriage is seperate category. Within worker category, your employer will need to file your H1 and later file for I 485. It also depends on what type of worker you are. As I mentioned earlier, if your work falls under EB 1 category, then you will have no issue converting into Greencard. Infact only EB1 and investor categories are two categories where you don't need employer.
Mine does not fall under EB1 but EB2 ROW. Where the i485 date is current. As big Ben suggested I will ask the company to file for PERM and then I 140 and 485. It should not take more than 2 years or worst case 3CANADAPATRIOT said:
screech339
VIP Member
- Apr 2, 2013
- 552
- Category........
- Visa Office......
- Vegreville
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- 14-08-2012
- AOR Received.
- 20-11-2012
- Med's Done....
- 18-07-2012
- Interview........
- 17-06-2013
- LANDED..........
- 17-06-2013
You cannot apply for Green Card while on TN visa. If you did apply for Green Card, you will be negating the Green Card application when you renew your TN visa. Thus it is impossible to get Green Card while on TN. By renewing your TN, you are declaring to US that you have no intention of migrating to US to settle. This declaration negates your GC application which declares that you are migrating to US. So which is it? So US will simply cancel your green card application.