Filing TN Extension of Status (I129) while Green Card (I485) pending

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xvrleblanc

New Member
Hi,

My company sponsored me for green card and we filed concurrent I140 and I485 application more than 6 months before expiration of my TN status. Only after filing the application I realized that the median processing time for EAD is longer than 6 months at this point due to Covid related issues.

Median processing time for EAD is ~8+ months (3rd quartile 9+ months) and if the times do not improve I will have to stop working for 2-3 months when my TN expires, which will be problem for me and my company.

Can my company file extension of status (I129) for my TN just before expiration of it? I know it will be eventually rejected due to my GC application but my understanding is that I will be allowed to work while I129 is pending (up to 240 days) and current processing times for regular I129 filings is 2-4 months (according to USCIS site). If my EAD is approved during this time, I will not have to stop working.

Does anyone have any experience with this? Does 2-4 months processing time mean that they will look at the application for the first time around 2 months after filing? Or will they reject the application immediately after receipt based on a checklist etc?

Thanks
 
You will have to stop working and wait for EAD. Filing an I-129 when you knw that you are not eligible would be considered frivolous and would not grant you extended work authorization.
 
nelsona said:
You will have to stop working and wait for EAD. Filing an I-129 when you knw that you are not eligible would be considered frivolous and would not grant you extended work authorization.
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I am not sure if this is how firvolous is defined in immigration matters. I heard "frivolous" only related to asylum applications in immigration matters and in those cases it does not mean filing a weak case but falsifying material facts related to the application. If you file a weak case it will just be denied.

Your approach puts more than burden to prove the merit of their case to the applicants. It puts burden to know immigration laws and predict how USCIS would decide on their case. If this were true a TN extension application for a weak management consulting case would also be considered frivolous and there should be consquences for the applicant since he/she should have some idea about the chance of approval of their case. Yet as long as they don't falsify the facts they have right to apply and USCIS have right to deny these applications. Law does not look at intentions, it looks at the facts.
 
aseke said:
I heard "frivolous" only related to asylum applications in immigration matters
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Untrue. Various other forms specifically refer to this, for example an i539 change/extension of stay application must be non-frivolous if the applicant is not to accrue unlawful presence while it is pending.
 
What would be the basis to deny a TN extension of status in this case? Immigrant intent only applies when applying for a visa and when seeking admission.
 
SusieQQQ said:
Untrue. Various other forms specifically refer to this, for example an i539 change/extension of stay application must be non-frivolous if the applicant is not to accrue unlawful presence while it is pending.
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I did not say this term is not used anywhere else, I said I heard only in this context. I am not a lawyer only sharing my opinion. However my understanding is in general "frivolous" means relying on false information in immigration context. You cannot claim an application is friviolous just because it is weak. Look at the following answers to a similar question in Avvo. All three lawyers answered say the employer can apply for extension of status on behalf of the employee while AOS is pending. I personally think that this case is weak but even when lawyers think the employers can file TN I-129 on behalf of the employee while I485 pending, how come you can say that such an application is frivolous? I believe such an application is more meritorious than many management consulting TN extensions whose beneficiaries stay in the US lawfully until they are rejected.

 
aseke said:
I did not say this term is not used anywhere else, I said I heard only in this context. I am not a lawyer only sharing my opinion. However my understanding is in general "frivolous" means relying on false information in immigration context. You cannot claim an application is friviolous just because it is weak. Look at the following answers to a similar question in Avvo. All three lawyers answered say the employer can apply for extension of status on behalf of the employee while AOS is pending. I personally think that this case is weak but even when lawyers think the employers can file TN I-129 on behalf of the employee while I485 pending, how come you can say that such an application is frivolous? I believe such an application is more meritorious than many management consulting TN extensions whose beneficiaries stay in the US lawfully until they are rejected.

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No, frivolous in the immigration context means filing an application you should know won’t succeed; specifically for non immigrant visas it is usually used in the context of trying to stay in the US when you know you don’t actually qualify for that status. It is not about whether an application is “weak” or not weak. An arguable basis in law might be weak or strong.
A false statement to gain an immigration benefit is misrepresentation, another issue entirely.

I have seen such bad info on avvo before I would not rely on it. Here is some actual USCIS insight:

To be considered non-frivolous, the application must have an arguable basis in law and fact, and must not have been filed for an improper purpose (such as to prolong one's stay to pursue activities inconsistent with one's status).

Please note I am not arguing whether or not OP has a case - but I am taking issue on your mischaracterization of what the term “frivolous” means in immigration law, in case it misleads others.
 
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SusieQQQ said:
No, frivolous in the immigration context means filing an application you should know won’t succeed; specifically for non immigrant visas it is usually used in the context of trying to stay in the US when you know you don’t actually qualify for that status. It is not about whether an application is “weak” or not weak. An arguable basis in law might be weak or strong.
A false statement to gain an immigration benefit is misrepresentation, another issue entirely.

I have seen such bad info on avvo before I would not rely on it. Here is some actual USCIS insight:

To be considered non-frivolous, the application must have an arguable basis in law and fact, and must not have been filed for an improper purpose (such as to prolong one's stay to pursue activities inconsistent with one's status).

Please note I am not arguing whether or not OP has a case - but I am taking issue on your mischaracterization of what the term “frivolous” means in immigration law, in case it misleads others.
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As I said I am not a lawyer and I am not trying to explain the legal terms here. I wrote my first post as I think Nelsona's answer was too harsh. I also think such an application have a high chance of rejection. But I think it is very unlikely that USCIS would consider such an application as frivolous in the sense that they won't impose any sanctions on OP just because he filed this application. In my opinion in the worst case scenario he will spend money for filing I129 and application will be denied so quickly that he will not get anything out of this. But eventually he should discuss this with a lawyer.
 
newacct,
TN is specifically denied after filing I-485. This is considered incontrovertible immigrant intent.
 
nelsona said:
newacct,
TN is specifically denied after filing I-485. This is considered incontrovertible immigrant intent.
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Hi Nelsona, but why is not the TN status automatically voided when AOS is filed? This is not a rhetorical question, I am trying to understand this. I would expect TN to be voided immediately after filing AOS, one should be able to stay in the US due to pending AOS but should not be allowed to work until EAD arrives. But somehow TN is still valid until it expires.
 
nelsona said:
newacct,
TN is specifically denied after filing I-485. This is considered incontrovertible immigrant intent.
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But like I said, immigrant intent in INA 214(b) applies to visa application and admission. I don't see any place that says it applies to Extension of Stay.
 
Aseke,
Intent will only be decided when one applies for TN, or when one requests admission in TN. Until then, no determination is made on exisying TNs.

newacct,
As I just said, determination is made on an I129 because it is a request for TN. USCIS is instructed to make these determinations during the I-129 process, which is precisely why the I-140 letter had to be sent out: I129s were being rejected on the basis of dual intent, strictly on basis I-140 filing. Now I129s filed with I-140 processed are NOT rejected unless further evidence (like the filing on an I485) is found. So clearly dual intent determination is not limited to "visa application and admission"
 
On the question of "frivolity". Perhaps an application will not be deemed frivolous, perhaps it will. This will be up to the poster AND his firm to decide. Since illegal work may harm the poster's I-485 process, and raise issues with the sponsor, I would want to err on the side of caution, and down tools once my work status expires and until I get my EAD. Your mileage/lawyer may vary.
 
Thank you very much to everyone who replied to my post. I wanted to add one thing here, I contacted a lawyer about this issue and he said that in the past he successfully got approval for TN I-129 after I-485 application of the employee.
 
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It does. Otherwise why would they have issued a memo to USCIS offices to not deny based on immig intent for I-140. CIS obviously makes such a determination on each case.
 
wagecuck3 said:
The old USCIS Adjudicator's Field Manual seemed to indicate that USCIS takes the position that immigrant intent is a valid reason to deny a change of status, citing Matter of Gutierrez, 15 I&N Dec. 727 (1976). It can be assumed that USCIS applies the same policy to extension of status cases.
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That's in the section on favorable exercise of discretion. But in my opinion, even if there was a high chance of non-favorable exercise of discretion, it would still not mean that the application was frivolous.
 
Yes, I think we agree that it would not be frivolous, given the need for a decision to be made.
 
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