Trouble
heng1234,
The status in which she left the US has absolutely no bearing here. The status we are concerned about is the one she ENTERED the US in. In her case she entered in "TN status", instead of "I-485 pending status"
Tammy2,
I think you're very wrong, here is my logic.
Here is the timeline:
1) Started in H4 Status. (Pre-August)
2) Applied for I-485. (August)
3) Entered the US using TN status (September)
4) Received EAD and AP. (October)
When she was in H4 status and applied for I-485 status, she remained in H4 status. H4 would have allowed her to enter the US without an advance parole document because it has a clause allowing for immigrant intent, and pursuing an I-485 does not nullify the H4 in any way.
Unlike an H4, when a person is in TN status and applies for I-485, the TN does not allow for dual intent. Although simply sending the I-485 application does not automatically nullify the TN status, and the person is in legal status, the TN status is nullified, when one of these situations occurs:
a) The TN expires.
b) The person quits the job related to their TN status.
c) The person switches jobs by using their EAD.
d) The person enters the US using their Advance Parole.
In either of these scenarios, the person's status changes from "TN status" to "I-485 pending status"
According to the law, when a person has demonstrated immigrant intent by applying for the I-485, this makes them ineligible to obtain a new TN status, or extend the existing one. It is for this reason that all lawyers handling TN -> GC cases recommend to their clients to make sure they have enough time left on their TN to make sure that their EAD arrives. (The recommended timeframe is about 4-6 months to allow time to get an interim EAD, if the actual EAD does not arrive in time.) If the TN were to expire, the person would be in "I-485 pending status" and would need an EAD to continue working, and an Advance Parole to enter the US after having left for a trip. If an EAD is not obtained in time, then the person must stop working. If an Advance Parole is not obtained in, then the person cannot re-enter the US from a trip abroad without explicitly abandoning their I-485.
Due to an error on the part of the officer at the either the POE or the PFI, (Canada has PFI at some airports) the person described above obtained TN status. This error probably occurred because it was too soon for the I-485 application to be visible in the computer system used by USCIS. This does not make it right though, since its up to the applicant, and not the officer, to know which status they wish to claim upon entering the US. It’s not the officer's fault. She asked for and qualified for TN status, so he gave it to her. Its was her choice to request TN status after having submitted an I-485, thus abandoning the I-485 in the same step. Why should the officer stop her? If she doesn't want a green card, that's fine with him. Let her have a TN.....
If an RFE were to be sent to this applicant at the adjudication time of the I-485 requesting proof of legal status during the entire period the person was in the US, this slight error may then be discovered by the adjudicating officer. Although she is continually in legal status, she no longer has a valid I-485 application. This may cause an issue with adjudication, or even an outright denial. I don't think an appeal nor a motion to reopen would help at that point either, since there is clear evidence of abandoning the I-485 application by applying for a non-immigrant status that does not allow dual intent when the I-485 was pending. On the other hand, since the dates are so close, USCIS may never notice, or if they do, they may just let it go. It’s a roll of the dice.
Technically, I believe she has abandoned her "I-485 pending status", and is currently in "TN Status". Whether it gets discovered or not is a risk that she needs to decide if she wants to take. I recommend seeking council that specializes in TN to Green card adjustment cases, as this could get really sticky later on in the game.
www.grasmick.com
This could probably be corrected by filing a "Follow to join" as soon as possible, as she is currently in TN status. Just my suggestion.
The good news is that she is in legal status. The bad news is that she is not on track to getting a green card, unless she files a "Follow to join". Since her I-485 has been voided by applying for a TN, the automatically invalidates her EAD and Advance Parole document also, so make sure she does not work for anyone other than the employer mentioned on the TN (as that would be considered illegal employment), and make sure she does not leave the country until this is all straightened out.
