Help: Could Adjust of Status be denied by TN-1 extension within 60 days??

C

canex

Registered Users (C)
Without knowing USCIS could reverse itself, my wife's company attorney filed her TN-1 extension/renewal a few days before 7/17/07 USCIS made AOS open for everyone AGAIN.

Last night, I received an email from my attorney, basically saying she STRONGLY against my wife filing AOS this time around, because she just renewed her TN-1 visa! Per my attorney, by renewing her TN-1 visa, my wife reaffirmed her nonimmigrant intent. She can NOT file AOS within 60 days. My attorney asked my wife QUITS HER JOB and reenter the country in H-4 to file AOS.

Apparently, my wife's attorney has different opinion. Since my wife has not been out of country for almost a year, AND, TN-1 extension was initiated/filed by her company, not herself, there is no issue with "nonimmigrant intent rule within 60 days".

Which one is true? Has anyone heard of an I-485 being denied because the applicant was on TN-1 or TN-1 extension within 60 days? I am curious if it has ever happened.

Please help and comment. We are in between a rock and a hard place. My wife does not want to quit her job and I don't want AOS being denied.
 
There is no "60 day rule". If your wife's TN is approved and if she has at least 6 months left on it, go ahead and file her AOS application. Clearly, your lawyer is not competant.

canex said:
Without knowing USCIS could reverse itself, my wife's company attorney filed her TN-1 extension/renewal a few days before 7/17/07 USCIS made AOS open for everyone AGAIN.

Last night, I received an email from my attorney, basically saying she STRONGLY against my wife filing AOS this time around, because she just renewed her TN-1 visa! Per my attorney, by renewing her TN-1 visa, my wife reaffirmed her nonimmigrant intent. She can NOT file AOS within 60 days. My attorney asked my wife QUITS HER JOB and reenter the country in H-4 to file AOS.

Apparently, my wife's attorney has different opinion. Since my wife has not been out of country for almost a year, AND, TN-1 extension was initiated/filed by her company, not herself, there is no issue with "nonimmigrant intent rule within 60 days".

Which one is true? Has anyone heard of an I-485 being denied because the applicant was on TN-1 or TN-1 extension within 60 days? I am curious if it has ever happened.

Please help and comment. We are in between a rock and a hard place. My wife does not want to quit her job and I don't want AOS being denied.
Click to expand...
 
Lets be clear here. The only basis for denial of I-485 petition in this case would be invalid status at the time of filing.

I would agree that there is a difference between entering the US on TN status, and filing a petition to extend TN status. When one enters on TN, this indeed you are promising not to have immig intent at that time, and 60 days seems to be the period of time most legals say that you need to keep that promise. Les than that calls ointo questiuon the validity of the entry, and thus the ability to file AOS.

Not so with I-129. When her firm filed I-129 it was asked 'has a immigrant petition been filed?' It should have answered 'yes' if I-140 was filed. but since an I-485 had not been filed at the time of the petition, they were not barred from filing I-129 for TN (some argue that even if I-485 is already filed, one is not prevented from filing for TN, so long as the question is answered 'yes' -- and let USCIS make up its decision to deny).

So it is the state of her petitions which governs the validity of I-129. The only worry is if the firm put 'no' when they had filed I-140.

If none of the answers in I-129 were fraudulent, then let the TN petition run its course. Even if it is denied, they will not revoke her I-485 petition. They will not Her I-129 was not fraudulent. Her status at the time of filing is valid. at that time she can think about going on H4. If it is approved, even better.

If the firm did answer 'no' when it had already filed I-140, then she should be screaming at her lawyer for mis-filing her TN, and let them determine the next course of action. There is no doubt that I-140 IS an immigrant petition. It just isn't as bad as I-485, since USCIS has said it will acceptI-129 with previously filed I-140. But the I-129 response should state this, not hide it.
 
Thanks for your kind help. Sorry, I should clarify this earlier on. My wife will apply AOS as a dependent of my I-485. She did not have her own I-140.

So, you think I should file I-485 for my wife, disregarding the 60-days intent rule? My attorney asked me to sign a waiver, basically saying I am against her advice.

Also, a stupid question, if my wife I-485 is indeed denied, is there remedy for her to stay in this country? Man, life in Canada is much easier. But, no decent job!!

nelsona said:
Lets be clear here. The only basis for denial of I-485 petition in this case would be invalid status at the time of filing.

I would agree that there is a difference between entering the US on TN status, and filing a petition to extend TN status. When one enters on TN, this indeed you are promising not to have immig intent at that time, and 60 days seems to be the period of time most legals say that you need to keep that promise. Les than that calls ointo questiuon the validity of the entry, and thus the ability to file AOS.

Not so with I-129. When her firm filed I-129 it was asked 'has a immigrant petition been filed?' It should have answered 'yes' if I-140 was filed. but since an I-485 had not been filed at the time of the petition, they were not barred from filing I-129 for TN (some argue that even if I-485 is already filed, one is not prevented from filing for TN, so long as the question is answered 'yes' -- and let USCIS make up its decision to deny).

So it is the state of her petitions which governs the validity of I-129. The only worry is if the firm put 'no' when they had filed I-140.

If none of the answers in I-129 were fraudulent, then let the TN petition run its course. Even if it is denied, they will not revoke her I-485 petition. They will not Her I-129 was not fraudulent. Her status at the time of filing is valid. at that time she can think about going on H4. If it is approved, even better.

If the firm did answer 'no' when it had already filed I-140, then she should be screaming at her lawyer for mis-filing her TN, and let them determine the next course of action. There is no doubt that I-140 IS an immigrant petition. It just isn't as bad as I-485, since USCIS has said it will acceptI-129 with previously filed I-140. But the I-129 response should state this, not hide it.
Click to expand...
 
Bigboy, there is indeed a 60-days intent rule. Please see the link below. My question is whether TN-1 extension, similar to I-140, which is initiated by employer, not applicant, is regarded as "nonimmigrant intent". I had conflict of legal opinions and a completely distraught/depressed wife. I don't know which venue I should go. To AOS, or not to AOS......

http://en.wikipedia.org/wiki/Dual_intent

The concept of dual intent is also related to the so-called 30-60 day rule for individuals[1] who obtain jobs or marry soon after arrival in the United States on a temporary visa. This rule first formulated by the Department of State and now also applied by the USCIS has been used to question the intention of an individual who comes to the United States for a short trip and then ends up marrying a U.S. citizen after arrival without having obtained a fiancee visa before arriving to the U.S. or seeks to change status from a visitor visa to an H-1B visa, for instance. The rule states that someone who acts in a manner to change status within 30 days is presumed to have had immigrant intent and if they act within 60 days of entry the authorities can be suspicious of the alien's fraud upon their original application.

Retrieved from "http://en.wikipedia.org/wiki/Dual_intent"


bigboy00 said:
There is no "60 day rule". If your wife's TN is approved and if she has at least 6 months left on it, go ahead and file her AOS application. Clearly, your lawyer is not competant.
Click to expand...
 
Last edited by a moderator:
canex said:
Thanks for your kind help. Sorry, I should clarify this earlier on. My wife will apply AOS as a dependent of my I-485. She did not have her own I-140.

So, you think I should file I-485 for my wife, disregarding the 60-days intent rule? My attorney asked me to sign a waiver, basically saying I am against her advice.
Click to expand...

As your other post highlighted, this is an ENTRY violation that is being discussed. There is absolutely nothing in her I-129 petition, filed by her employer, that would be fraudulent.
What your lawyer should be asking then is, has she made any entry into US in the past 60 days. If she has, THEN she has an argument. But unless this is the case, tell her to do the job she is being paid to do (nicely). Even if this was the case, I would be telling her to file.

In any event, this has no impact on her TN job, unless and until her I-485 is denied, or if somehow she is not given and EAD/AP in the next 10-12 months (current time is 3 months). Remember that she needs to file for these as well.

And while wiki is good at broad strokes, that isn't the law. There is absolutely no problem for a Cdn to come down to us on a tourist status (even telling them at the border that they are going for interview) and then getting a TN by mail. This is done all the time.
 
Last edited by a moderator:
Dude,

Wikipedia is not the "law". It is a general informative site maintained by the guys like you and me. And it tells you about the "SO Called" 30-60 day rule and does NOT provide any link to the official site that states this "so called" rule. I will belive this rule if you show me this rule on the official USCIS web site.

canex said:
Bigboy, there is indeed a 60-days intent rule. Please see the link below. My question is whether TN-1 extension, similar to I-140, which is initiated by employer, not applicant, is regarded as "nonimmigrant intent". I had conflict of legal opinions and a completely distraught/depressed wife. I don't know which venue I should go. To AOS, or not to AOS......

http://en.wikipedia.org/wiki/Dual_intent

The concept of dual intent is also related to the so-called 30-60 day rule for individuals[1] who obtain jobs or marry soon after arrival in the United States on a temporary visa. This rule first formulated by the Department of State and now also applied by the USCIS has been used to question the intention of an individual who comes to the United States for a short trip and then ends up marrying a U.S. citizen after arrival without having obtained a fiancee visa before arriving to the U.S. or seeks to change status from a visitor visa to an H-1B visa, for instance. The rule states that someone who acts in a manner to change status within 30 days is presumed to have had immigrant intent and if they act within 60 days of entry the authorities can be suspicious of the alien's fraud upon their original application.

Retrieved from "http://en.wikipedia.org/wiki/Dual_intent"
Click to expand...
 
Last edited by a moderator:
Bigboy, google "preconceived intent" and you will come up with a dozen law sites that talk about this issue. The 30/60 day rule does exist, and applies to ENTRY.
 
nelsona said:
Bigboy, google "preconceived intent" and you will come up with a dozen law sites that talk about this issue. The 30/60 day rule does exist, and applies to ENTRY.
Click to expand...

Okay, even though I was able to find various lawfirm sites talking about this so called rule, I was not able to find the official website discussing this rule. Oh well, since this (TN->GC) is a (kind of) loophole, I realized that they will never publish it!

I am beliving it only because you are confirming it ;)
 
bigboy00 said:
And it tells you about the "SO Called" 30-60 day rule and does NOT provide any link to the official site that states this "so called" rule. I will belive this rule if you show me this rule on the official USCIS web site.
Click to expand...

It's not a USCIS rule. It's a US Federal Court precedent, which gives it substantially more weight. Search for Seihoon v. Levy.
 
You have 2 lawyers working on this. Let them decide. One says it is one doesn't.


Be assured though that if you do not file by 8/17, and your case is EB3, you will not be able to file for her for several months, maybe longer (not that it will matter, since you won't be getting GC for a while either).

But, as her lawyer says, by not having entered US for so long a period, she personally has neither demonstrated immigrant nor nonimmigrant intent. The last time she did was when she last re-entered US.

And her I-129 is golden, since the FIRM had made no efforts on her behalf to file I-140/AOS, and you hadn't filed anything on her behalf.

I would sign the waiver, and move on.
 
Nelson, the alternative is I don't file AOS for my wife for the time being. She received her TN-1 extension today, which will be good until 9/5/2008. I fully understood, I could not add her to my I-485 until my PD becomes current again. But, I am not super concerned, since 1) my AOS will not be processed anyway 2) as long as my wife can continue to work under TN-1 and travel freely.

Can VO deny my wife's TN-1 visa if spouse (me) is applying GC? What about travel? It is ironic that, all the AOS hassles are due to not enough "immigrant intent" from my wife!!

nelsona said:
You have 2 lawyers working on this. Let them decide. One says it is one doesn't.


Be assured though that if you do not file by 8/17, and your case is EB3, you will not be able to file for her for several months, maybe longer (not that it will matter, since you won't be getting GC for a while either).

But, as her lawyer says, by not having entered US for so long a period, she personally has neither demonstrated immigrant nor nonimmigrant intent. The last time she did was when she last re-entered US.

And her I-129 is golden, since the FIRM had made no efforts on her behalf to file I-140/AOS, and you hadn't filed anything on her behalf.

I would sign the waiver, and move on.
Click to expand...
 
As long as she does not file I-485 she is fine on TN for work and travel.

Of course, you will face the same roadblock in your lawyer, now that she will have 'won' this debate, and she will NEVER file your wife's AOS.

Consider: what are you going to do, never leave US? for fear your PD will become current? She did that for a year and it wasn't good enough for your lawyer.

I'd be tempted to tell you to file her caes on your own.
 
The ironic thing is that most lawyers will even file I-129 for TN after sending AOS, knowing it will likely fail, just to keep status alive, but your lawyer won't even send in a perfectly fine AOS, which has almost no chance of denial.

Good thing you weren't on TN, or your lawyer would have been incapable/unwilling to ever file AOS for you, too.
 
Last edited by a moderator:
Paid $$$ (!!!) and consulted a well-reputed local immigration attorney. Basically,
1) 30/60/90 rule refers to POE. Nothing to do with renewal. My attorney is WRONG.
2) Techically/legally speaking, TN-1 => GC/AOS has some risks, but tiny. My wife's attorney is RIGHT.

Also, received a free email consulation from Danielle Rizzo www.visahelp.com

Danielle Rizzo said:
Many of our clients file Adjustment of Status applications within 60 days of renewing their TNs and have not had any problems.

Attorney at Law

Law Offices of James D. Eiss
19 Limestone Drive, Suite 1
Buffalo , NY 14221
Tel. 716-633-9300
Click to expand...

Nelson, YOU ARE THE MAN. Really appreciate your contribution to the whole community. GO AOS and I will sign the waiver.
 
Last edited by a moderator:
You must log in or register to reply here.
Top