Adjustment of status after re-entry on TN

sabih

Registered Users (C)
Is there a 30 time limit (upon re-entering USA on an existing TN's newly issued i-94 from a country other than Canada) when applying for adjustment of status (I-485)?
 
TN's are suppossed to pursue Consular Processing instead of AOS to take advantage of a tiny loophole and the "wink and a nudge" cooperation from DHS in not fully enforcing the "non-immigrant intent" issue. If you try to mess with the very tenuous system it will end badly.
 
Ignore BigJoe's comment.
Yes, you may file I-485 after a "certain" time you have crossed. You should wait 45-days days before filing.
 
Thanks Nelsona for your reply. Is 45 days the minimum period required or just a safe period before applying for AOS? I heard from someone else that its 30-60 days but don't know for sure.
 
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That's true but won't 45 days still be considered "strong suspicion that the person may have acted in bad faith"?
 
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It is not a hard-and-fast number of days. You came to this post with 30 days, I mentioned 45. You wonder about 30-60.

So, why not wait 60 then. Or call 4 lawyers for 4 different answers.

... and if you "quote" something, plese cite a reference.
 
One small excerpt from: http://www.naftatnlawyer.com/applying-for-green-card-tn-st/

Once Immigrant Visa Number Becomes Available,

Immigrant Intent Issues Loom.

In the last stage of the green card process an immigration officer may have reason to allege immigrant intent. After the PERM process is complete, an I-140 petition is approved, and a visa number becomes available, a TN visa professional may then embark on the final step for a green card. At this stage it is possible to obtain a green card during the one year period of stay authorized under TN visa status. Because of this immediate access to a green card, an immigration official may properly allege immigrant intent.

Best Practice: Immigrant Visa Processing.

For this reason our office recommends a TN visa professional pursue a green card through immigrant visa consular processing. Under this procedure, the TN visa professional is in a better position to argue bona fide nonimmigrant intent. .....................................
 
What about hundreds of individuals who got GC via TN thru AOS. Were they simply lucky or was there more to it?
 
For this reason our office recommends a TN visa professional pursue a green card through immigrant visa consular processing. Under this procedure, the TN visa professional is in a better position to argue bona fide nonimmigrant intent. .....................................

Clearly in relative terms it is less risky to pursue a GC via CP. In absolute terms, neither is of concern, especially since the 1-year TN duration has now been extended to 3. FWIW, my wife filed an I-485 from B status without any issues of immigrant intent.
 
What about hundreds of individuals who got GC via TN thru AOS. Were they simply lucky or was there more to it?

There's always more to it than meets the eye. Don't confuse terms and categories. Employment based vs. family based AOS applicants are treated differently.

AOS is adjustment of status to lawful permanent resident. That is USCIS form I-485 and based on an immigrant petition.

TN is a non-immigrant classification and may be obtained at the border from CBP for Canadians (or via a consulate for Mexicans) or by filing with USCIS in the U.S. for a COS, change of nonimmigrant status or if already in TN one may apply with USCIS for EOS, extension of nonimmigrant status. These are through USCIS form I-539.

To get MOST nonimmigrant visas, COS, or EOS, one needs to demonstrate "nonimmigrant intent". TN does not have "dual intent" status, but because obtaining an employment based greencard is such a long drawn out process, a TN can show a "current" nonimmigrant intent while still having a distant or long term immigrant intent. That is why consular processing is the appropriate way to proceed for a TN who does want an employment based greencard.

There are exceptions, like when a TN nonimmigrant happens to have a USC spouse (or a spouse who subsequently naturalizes--although the presence of a USC or LPR spouse in the U.S. would usually prevent a TN being issued in the first place) and can file form I-130 concurrently with an adjsutment (AOS) package.

Of all these "hundreds of individuals" that you refer to, just how many are employment based adjustments and how many are family based adjustments? Also, where in the U.S. are all these "hundreds of individuals"? In close proximity to the border or in large immigrant communities within the U.S. in major metropolitan areas that support the TN's professional goals?

The vast majority of TN professionals do not need to marry a USC to file for a greencard and will pursue employment based greencards, those individuals will likely have an attorney and those attorneys will tell them to do Consular Processing as their TN clients merely have to cross a shared U.S./Canadian or U.S./Mexican border. Although the types of jobs covered by TN classification are similar to H1-B professions, the people filling the TN positions are limited to Canadians and Mexicans. All the other tricks-of-the-trade are useless for TN's.
 
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So what you are suggesting is that there is a very thin chance of getting a GC on a TN (employment based) while applying via AOS, correct? In my case, the 485 date is current and I can apply for it within a couple of months (due to recent travel). I am planning to apply for 140 right away and will apply 485 on the pending 140. My TN is valid for more than 1 1/2 years.
As far as my understanding goes, many on this forum got their GC via AOS process and reputable immigration law firm such as murthy had no issue going ahead with job based AOS route as per my initial consulting with them.
And curious George will probably be more descriptive on that subject.
 
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What BigJoe is saying (being completely unfamiliar with the TN to GC process) is that he thinks you should go consular route, which is fine. However, 1000's have gone TN to GC route (employemnt-based) without issue. Your only concern is the recent entry under TN. Wait 60 days and you can file I-485 without issue. I-140 is never an issue, since CBP and CIS both have memos that insruct them on this.

Consider that BigJoe has posted neraly 900 posts in 2 months, on a whole slew of topics. Jack of all trades, master of none.
 
TN does not have "dual intent" status, but because obtaining an employment based greencard is such a long drawn out process, a TN can show a "current" nonimmigrant intent while still having a distant or long term immigrant intent. That is why consular processing is the appropriate way to proceed for a TN who does want an employment based greencard.
Spoken like an individual that has no personal experience in the matter, or professional expertise....Sorry to flame you, but you are incorrect, sir.

You can click the link on the link in my signature to see the treatise, however, here are the relevant excerpts JUST FOR YOU, and anyone who you may have misled with your comments thus far.

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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.


Appendix C:
Quotes relative to the issue of immigrant intent:

Quote #1 started the ball rolling:
"The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay [under TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN non-immigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that a TN non-immigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN non-immigrant may be refused."
Letter from Yvonne M. LaFleur, Chief, INS Business & Trade Services Branch
(posted on AILA InfoNet as “I-140 Filing Not Dispositive for TN” (June 18, 1996)).

Quote #2 reinforced the statement made in Quote #1, and now there was no doubt that a pending I-140 alone does not make one ineligible for TN status:
"After considerable discussion between the Nebraska Service Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form I-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an I-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has non-immigrant intent."
AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet at Doc. No. 02111431 (Nov. 14, 2002).

Quote #3 is a court's description of "immigrant intent".
“There is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.”
Choy v. Barber, 279 F.2d 642, 645-46 (9th Cir. 1960)

Quote #4 is another court's description of "immigrant intent".
"A desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent."
Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)

Quote #5 Shows that only H and L visa allow for dual intent, which incorrectly makes most people assume that a person in TN status cannot file an I-485, while it is the inverse that is true. A person in TN status can file an I-485, but once that I-485 is filed, they are no longer eligible to file for a TN. this of course is not a problem as long as the person files for an EAD and AP in a timely manner.
Under Section 214(b) of the Immigration and Nationality Act, (Act), most non-immigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain non-immigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i) and (L) of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their dependent spouses and children, to maintain their non-immigrant status during the pendency of their applications for adjustment of status.


Quote #6 addresses the issue of a spouse of an I-140 beneficiary, whereby the SPOUSE is entering in TN status (but not the actual I-140 applicant).
CBP Letter Addresses Immigrant Intent for TN Applicant Married to I-140 Beneficiary (uploaded to AILA on 2/12/2009)
A 4/21/08 letter from Paul Morris, Executive Director, Admissibility and Passenger Programs, CBP, addresses immigrant intent for a TN applicant whose spouse is the beneficiary of an I-140 petition. Courtesy of Charles Herrington. AILA Doc. No. 09021280.


Appendix B:
AOS vs. CP
Many good lawyers will not touch a case where a person insists on filing an adjustment of status from TN status. These lawyers will typically insist on filing for an H1b prior to starting the process. Many experienced NAFTA lawyers may recommend that you consider consular processing rather than AOS. Still there are the rare few lawyers that will process an Adjustment of Status even if you insist that you do not want to file an H1b. Although many lawyers will simply say a TN does not allow for dual intent and insist you need an H1b, the lawyers who know that you can do TN to GC via AOS still won't tell you their real reasons. As for the lawyers that know it is doable, but still won’t do it, I believe that one of the reasons is that they make more money from you by filing an H1b. Not all lawyers are that hungry though. They also do not want to incur the increased risk of you letting your TN lapse and not having applied for an EAD or AP. The other risk is that after having filed for an I-485 you could inadvertently reapply for a TN, or simply attempt to re-enter in TN status at the POE/PFI, in effect, voiding your I-485. You might forget to use your AP upon reentry. Prior to having applied for an I-485, you may inadvertently mention that you have intentions to stay in the US permanently, which in effect, is clear immigrant intent. All this comes down to the fact that many lawyers do not have control over your actions, and you are the biggest unknown in this formula, not the law itself. If you don't know the laws, you could screw up the whole case, and low-and-behold, your lawyer will have to work extra hard to try to bail you out, if that is even an option. They don't want that risk, they don't want that extra work for no extra compensation, just because you didn't listen to their every word. So, they will avoid taking the case altogether. If you really feel you want to take this route, you will have to shop around for lawyers for a while. I will try to list the pros and cons of each option below. It’s up to you to decide. It’s up to the lawyer to decide if (s)he trusts you enough to help you take option 1. And if option 1 is still for you, be aware of the damn legal constraints!

Option 1: TN to GC via AOS:
Pros:
1.1) By staying in TN status and avoiding H1b, you don't have to deal with any quota issues. Since TNs are always available, there is potentially less of a delay.
1.2) If you don't qualify for H1b then this is really the only way to go. I didn't qualify for H1b at the time my GC was getting processed, since I did not have a bachelors degree, nor did I have enough experience to make up for lack there of. TN was my only option.
1.3) By taking the AOS rout vs. the CP route, your spouse and children will get an EAD during the time that it takes to process the I-485. When you file CP your dependents will not have permission to work until they get their GC.
1.4) if your priority dates are current, you could take advantage of AC-21. CP does not qualify you for AC-21.
1.5) If your case is denied for any reason you could file an appeal or a motion to reopen.

Cons:
1.5) You should avoid travel if at all possible after your I-140 is filed.
1.6) You cannot travel whatsoever after your I-485 is filed, and before your AP is in your hand.
1.7) You need to ensure you have sufficient time left on your TN prior to filing your I-485.
1.8) You will need to get an approved EAD prior to your TN expiring after you filed your I-485.
1.9) If your I-485 was to get denied, your EAD and AP would be void, and you would be out of status immediately.
1.10) You need to keep renewing your EAD and AP in a timely fashion to ensure you can continue to work and travel.

Option 2: TN to GC via CP:
Pros:
2.1) CP is typically quicker than AOS, but with the retrogression of priority dates, this point is less and less of any sort of benefit.
2.2) You have little to worry about when using your TN to travel or work, since there is no issue of dual intent here, although there have been cases when people have had issues reentering in TN status with a pending/approved I-140.

Cons:
2.3) You will need to travel to Canada to get your medical done prior to your interview. It may not be convenient for you to take a vacation.
2.4) Your dependents cannot file for an EAD, so they are stuck in TD status until they get a GC.
2.5) If for any reason you are denied at the interview, you cannot file a motion to reopen. Lawyers can do little to help you at this point.
2.6) You cannot benefit from AC21. If you lose your job at any point when waiting for your consular interview, you would have to start the entire process all over again, including PERM, I-140, and waiting for your name check and priority dates to come through.

Option 3: H1b to GC via AOS:
Pros:
3.1) No concerns with crossing the border at any time during the process.
3.2) No need to file for EAD or AP, as long as you stay with the same company, you can keep extending your H1b.

Cons
3.3) You may need to wait for H1b's to be available.
3.4) If you switch companies (i.e. AC-21) or work for multiple companies when your I-485 has been filed then you would need to get an EAD and AP, in which case if your I-485 is denied for any reason your EAD and AP would be void, and you would be out of status immediately.
3.5) H1b's cost way more than TN's.
 
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Upon our entry yesterday in US the officer at JFK didn't replace the I-94s for myself and my kids since according to him they had multiple entry mentioned on them. He therefore simply put an entry stamp on our passports. In the case of my wife, however, he replaced her I-94 along with the putting stamp on her passport as she travelled abroad earlier this year and was issued then an I-94 with single entry. The question I have is whether having the same TN from early last year qualifies me to apply for I-485 without waiting 30-60 days or is the entry stamp the deciding factor.
Thanks!
 
The replacement or not of the I-94 is not the issue. Entry on TN/TD/B1/B2, etc is the issue. You should now wait 30,45,60 days before filing I-485.
 
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