Impact of overstayed TN

S

socomplicated

New Member
Hi,

I was hoping I could get some advice for the following situation. I apologize in advance for the length of the description and for any confusion.

Although I'm a Canadian citizen, I have lived in the United States since high school and have been here for over 12 years at this point, through various Visas (L2, F1, and now TN). Most recently, I was working in New York under TN status (with the I-94 set to expire in February 2018), but in an effort to move closer to my family and (American) fiancé, who all live in California, I quit my job in January (thinking that my I-94 governed) to move to California and sit for a state licensing exam, which I now realize was in error because have overstayed my TN status, despite having a valid I-94 until next year. I also realize that I may have made a mistake as to not having requested a change of status when I quit my job so that I could be here as a visitor.

Recently, after receiving the aforementioned state license, I've been interviewing for positions. I'm now concerned that when I get a job offer, when I go to the US-Canada border to get a new TN status, that I may have trouble coming back to the US due to having overstayed my TN status and not requesting a change of status. Moreover, it would be very difficult for me to show an intent to return to Canada given that: 1) I have lived in the U.S. for the last 12 years, all of my higher education was completed in the U.S. and I am licensed to practice law in the U.S.; 2) I intend to marry an American citizen in the Fall; and 3) my parents are now American citizens, who work and own property in the United States and have filed for my green card.

Any advice on how to proceed? Thank you in advance for your help.
 
There is no specific statutory impact. It will probably increase the chance of being denied entry, but that's at the officer's discretion, so it's impossible to predict.

Since you are going to marry a US citizen soon, you might as well stay and apply for Adjustment of Status in the US after marrying; that way you don't risk being stuck in Canada and have to do Consular Processing in Canada after marrying, which can take up to a year.
 
Thank you for your response. Just to clarify, you're saying that it may be better to remain in the U.S. despite overstaying and refrain from working until I get married and apply for an Adjustment of Status and receive an EAD? Also, how would applying for an Adjustment of Status work if I already have an approved I-130?
 
socomplicated said:
Thank you for your response. Just to clarify, you're saying that it may be better to remain in the U.S. despite overstaying and refrain from working until I get married and apply for an Adjustment of Status and receive an EAD? Also, how would applying for an Adjustment of Status work if I already have an approved I-130?
Click to expand...
Do you mean the petition from your parent? It's not relevant as you are going to immigrate through your (soon to be) spouse. Your spouse will file a new I-130 after marriage and you will file your I-485 together with that. Multiple people can file petitions for you; they are independent and don't conflict.
 
Yes, the petition from my parent (for which the priority date is still several months away). Would I have to remove the petition from my parent first and then have my spouse petition? And what if I get a job offer before I get married?
 
socomplicated said:
Yes, the petition from my parent (for which the priority date is still several months away). Would I have to remove the petition from my parent first and then have my spouse petition? And what if I get a job offer before I get married?
Click to expand...
No, as I said, you can be the beneficiary of multiple petitions. You would just ignore the petition from your parent.

You can apply for an EAD (as well as an Advance Parole) for free with your I-485. It would take a few months after that to get the EAD. You can work once you get the EAD or the green card.
 
But be aware that having an I-130 on file for you ALSO is considered immigrant intent, and could get you refused entry if discovered.

The problem that newacct neglected to tell you is that trying to file I-485 soon to adjust status now, based on an I-140 from your spouse (after you marry), is that you are not in a legal status in US, so cannot legally file I-485. So your only hope is leaving US and preying that you get your TN, otherwise you will be stuck in US until you get a Fiancee visa.
 
nelsona said:
The problem that newacct neglected to tell you is that trying to file I-485 soon to adjust status now, based on an I-140 from your spouse (after you marry), is that you are not in a legal status in US, so cannot legally file I-485.
Click to expand...
This is just wrong. People in the Immediate Relative category (spouse, under-21 unmarried child, or parent of US citizen) do not have to be in status to file I-485.

Also, a relative petition from his spouse would be an I-130, not I-140.
 
Thanks for the corrections and yes, the I-140 was a typo.
So, I guess I would be waiting to marry and file I-130, etc to get EAD before working. The AOS process related to your parents isn't going to get anywhere , but there is no harm in letting it go on.
 
You must log in or register to reply here.
Top