Applying regular TN extension just before I485

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ealtinta

New Member
Hi,

I was reading curiosGeorge's TN to GC post. I noticed he wrote the following about his case.

"My lawyer filed to renew my TN via mail (...). A few weeks later in April of 2002, he filed my I-485, EAD's and AP's for both my wife and I. (...) My first EAD's and AP's arrived in May 2002, and then my 5th TN renewal arrived in June 2002."

So looks like the fact that the applicant filed an AOS was not a problem since there was no AOS application when TN extension was filed. Do I understand this correctly? USCIS should have known about the AOS application while approving the TN extension application. Can we say that USCIS has to consider only the facts as of the date of the application and ignore the subsequent developments?

If this is true, I plan to extend my TN with regular processing just before filing my AOS to save time and money. I believe my TN extension application has a low chance of denial unless AOS application will be problem.

Thanks
 
\In this case the problem is not only with the TN, but more seriously, with the I-485. There are new, clearer 60-, and 90-day rules for fraudulent entry or petition. One is now supposed to wait 90-days after a petition or entry in a status which does not permit dual intent. So file for TN, and then wait 90 days to file AOS.
 
nelsona said:
\In this case the problem is not only with the TN, but more seriously, with the I-485. There are new, clearer 60-, and 90-day rules for fraudulent entry or petition. One is now supposed to wait 90-days after a petition or entry in a status which does not permit dual intent. So file for TN, and then wait 90 days to file AOS.
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Thanks for your answer Nelsone. I have not thought about this point before. But when I searched for it, 90 days rule is explained as violating terms of your status within 90 days of arriving to US. I have not left US for years due to Covid now. The extension request for TN will be for a future date more than 90 days from the filing date of TN extension (and I485) and regular procesing takes 2.5-4.5 months for TN extension.

Since I plan to apply I485 just after filing TN extension, at that point I will for sure still be using my current TN status which I received more than 2.5 years ago and I won't file anything after the approval of TN extension (if it is approved). Do you still think this is a problem?

If not this may be another reason for filing regular extension before AOS application instead of extending TN with PP and then applying for AOS. However I still need to know if a TN extension filed "before" AOS application will be approved or denied based on immigrant intent?
 
Yes, you are correct that it is the entry on TN rather than the application for TN that kicks in the 90-day rule.
However, there is a risk that your TN will be denied, if it is found that you have applied for I-485, during the i-129 approval process.

I cannot confidently say that USCIS would ignore your AOS during the processing of your TN, simply because the AOS was mailed in a few days/weeks later. I would not necessarily rely on an anecdotal case from 19 yrs ago. The consistent advice here is to have a TN with 3-4 months (now 6-7 given the EAD delays) validity, before applying for AOS.

Since you are eligible, I would be filing a premium processed I-129 to ensure getting approval before applying for I-485.
Even a "low chance" of denial, is not no chance. And each week you are out of work, waiting for an EAD would be quite costly to you and inconvenient for your sponsor.
 
nelsona said:
Yes, you are correct that it is the entry on TN rather than the application for TN that kicks in the 90-day rule.
However, there is a risk that your TN will be denied, if it is found that you have applied for I-485, during the i-129 approval process.

I cannot confidently say that USCIS would ignore your AOS during the processing of your TN, simply because the AOS was mailed in a few days/weeks later. I would not necessarily rely on an anecdotal case from 19 yrs ago. The consistent advice here is to have a TN with 3-4 months (now 6-7 given the EAD delays) validity, before applying for AOS.

Since you are eligible, I would be filing a premium processed I-129 to ensure getting approval before applying for I-485.
Even a "low chance" of denial, is not no chance. And each week you are out of work, waiting for an EAD would be quite costly to you and inconvenient for your sponsor.
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Thank you very much for the detailed response Nelsona. I learned a lot from you. From your reply I understand that since I have been in the US for more than 90 days (in fact it is 2+ years), 90 days rule will not be problem even if I extend the TN with PP and apply to AOS immediately after that, is this correct?
 
That is correct. There will be no immigrant intent basis for denial. The 90-day rule does kick in as a result of mailed-in petitions.
 
@ealtinta, Were you able to successfully file I-485, immediately after renewing your TN through PP. I am in the same situation, it would be great if you can share the whole experience and process you followed.
 
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