crazycanadian said:
One thing, you mentioned that I would have to be in the US when we file the I-485, which is after the I-140. I thought that it's possible to file both together....am I wrong?
That is correct, but it is not recommended to do so when you are adjusting status from TN / TD.
Reason: When you apply for the I-140, I-485, EAD and AP at the same time you have shown immigrant intent simply by submitting the I-485. This means you are no longer eligible to apply for, or extend your TN/ TD status. If your I-140 is denied, your I-485 will automatically be denied by default, and you will be out of status. Since you've shown immigrant intent, you can't get a new TN / TD, and thus you must leave the country ASAP, and you can't even reapply for the I-140, as you will be out of time very quickly.
Reason #2: USCIS may not approve your EAD / AP until the I-140 is approved. This has happened in some cases on this forum, especially if there is a pending RFE on the I-140, then your I-485/EAD/AP are all put on HOLD. If your TN status expires before you get an EAD, then you're still in legal status to be here (I-485 pending status), but you cannot legally work until you get the EAD. You would need to take a leave of absence at work to be on the legal side of the law. The leave of absence would need to clearly document that you are NOT getting paid.
Reason #3: You can only apply for an interim EAD if your I-140 is approved, and your EAD application has been pending for more than 90 days. If your I-140 is not yet approved, and your EAD is not approved either, you can't even get an interim EAD, and your TN will most probably expire by then and you have no choice but take a leave of absence.
If you proceed as I recommended, you should apply for the I-140, and resolve any RFE's you get from that. Make sure it gets approved, and then proceed. If it gets denied, you can always start over, since filing an I-140 does not show immigrant intent, and you can continue to extend your TN / TD.
Once the I-140 is approved, you need to make sure that you have at least 5 months left on your TN BEFORE submitting the I-485/EAD and AP applications. If you do not have 5 months, then do not send the applications yet. You must first apply to extend your TN/TD (lawyers call this re-loading your TN/TD before shooting off your applications), and then you can send the I-485/EAD and AP applications.
At this point you've shown clear immigrant intent. Be forewarned, this is a touchy situation until you get your approved EAD/AP, but not in any shape or form illegal, let me explain. You will be in TN status until it expires, or until you use the AP to re-enter the United States. When ever either even occurs you will be in I-485 pending status, and not in TN status any longer. You can no longer use your TN to enter the United States once you sent the I-485 application, but you can continue to work since you have an unexpired TN. If your EAD does not arrive in 90 days, you can go get an interim EAD at the local office, which may take a few days to get approved. Once you get an EAD (interim or not) this will replace your TN as permission to work. The TD spouse will also get an EAD, and will now have the permission to work.
Do not leave the United States until you get your AP approved. This is critical, or else your entire process will be denied if you try to re-enter using your TN/TD.
Once you get the AP, you can travel, and enter the United States using the AP, and you would be entering in I-485 pending status, not in TN status as you are accustomed to. Never show your old I-94 with the TN stamped on it at this point ever again, only use the AP to enter the US.
So to summarize, yes you can submit your I-140 and your I-485 at the same time, but by doing so your increase your risk by ten fold that if your I-140 has adjudication issues, you could be out of status, or you can't work, and the entire process would be down the tubes. It is not recommended to apply I-140 and I-485 concurrently while in TN status for these reasons.
As I mentioned earlier, a good lawyer should surely be able to explain these pitfalls to be aware that you need to navigate around. There is nothing illegal here, but you just need to be aware of the situation you're in. Most lawyers feel that their clients are not savvy enough, and will screw up own their case by making a wrong move, at the wrong time, and then the lawyer can't even help them get out of their predicament. For this reason they are wary taking a TN to GC case. They would rather have the person switch to an H1B first, since then the lawyer does not have to "baby sit" the client to make sure they don't leave the country, or let their TN expire.
I'm telling you I did it, but at the same time, I was made very aware of what is going on every step of the way by my lawyer, so do not take this method lightly. You, yourself, not the lawyer, nor your employer, need to be on the ball with this one.
