Possible problem for TN->GC

B

bigboy00

Registered Users (C)
I am on TN status and my spouse and my child are on TD. I am ready to file for the AOS and also for the EAD. The problem I am facing is that myself and my wife can change our status from TN/TD to EAD, once we get our EADs. But what about my son? Since he will not have an EAD, will he be out of status after the expiry of his TD?

We are applying for the Advance Parole too. But my understanding is that it is just a permission to re-enter the country and is not considered a valid status after the expiry of your exisiting status.

Gurus, please explain if there is any way out...
 
EAD is not a status, its permission to work. I assume you son is not of working age.

The I-485 reciept notice is proof of your AOS status. The same holds true for your son.

If your EAD were to expire, you would remain in AOS status as long as your I-485 is pending.

If you travel, you will need an Advance Parole to reenter the US.

You will remain in TN/TD status until one of the following happens:
1) Your TN expires, you and your family are all in AOS Pending status now.
2) Your spouse / son TD expires, they are now in AOS Pending status, depending on which one xepired.
3) You leave the US and reenter using your AP. You and your family are all in AOS Pending status now.
4) Either your son or your wife leave the US and reenter using thier AP. they are now in AOS Pending status.
5) You use your EAD to work at a different job, or at a secondary job. you and your family are all in AOS Pending status now.
6) your spouse uses her EAD to work. She is in AOS Pending status now.
You present your EAD to your current employerm and file a new I-9. you and your family are all in AOS Pending status now.
7) You get layed off or quit without a new job lined up. you and your family are all in AOS Pending status now.
8) Your I-485 gets approved. You are now in permanent resident status.
9) Your I-485 get denied. You are out of status.
 
NEED HELP! TN to GC: Consular vs. AOS

Hi,
I'm new to this forum and I've been reading a lot of the postings particularly for Canadians getting GC without going through H1. Thanks for all the postings coz its really helped me a lot in understanding the process or else I'd be goin crazy!

Anyways, my situation is similar to most, I'm on TN and just got my Labor Cert
approved last 12/2006 for EB2 (birth country: Philippines). I want to start my I-140 processing but lawyer handling my case advises me to do I-140 with consular processing. I'm worried about going through this process coz I've had some bad experiences with border officers whenever I apply for a new TN that left me anxious and panic whenever I go through immigration when I travel. I've read the pros and cons of consular processing vs. AOS from this forum (thanks curiousGeorge!) ... and I'm still undecided...I just renewed my TN so its good for another year and 2 mos ( I got my new TN and still have 2 mos. left on previous one)...

I know there's premium processing as well for I-140 so I can take advantage of that as well. Is goin through AOS the safest route? I just don't want to lose my ability to get TNs in the future.

I appreciate any help!

Thanks!
 
I want to start my I-140 processing but lawyer handling my case advises me to do I-140 with consular processing.

-- Do you mean I-485 with consular processing? Because there is no CP for I-140. Therefore, get your I-140 approved first and then think about I-485.
 
pinoyInDC said:
do I-140 with consular processing
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Just to clarify, you wouldn't actually have your I-140 processed at the consulate. You would still have the I-140 processed at USCIS. The application on the I-140 asks you if you want to adjust status, or if you want to interview at a consulate.

Once your I-140 is approved at USCIS, you would follow the route you selected on the I-140. If you selected CP, then you would go for an interview, if you selected AOS, then you would file an I-485, and don't file them concurrently.

It is for this reason why your lawyer is posing this question at this juncture.

Now, most lawyers want you to file CP when you are in TN status, since it should avoid all the other hassles and caveats that can be associated with AOS which they have no control over, and when you file AOS they can only depend on you to be diligent, and mindful of your actions. (I mention many of the pitfalls to avoid in the long post you mentioned that you've already read, I assume you're talking about the second post on this thread: http://www.immigrationportal.com/showthread.php?t=152852) Most lawyers don't want to take that risk, since many applicants are not educated about the laws, and therefore are not mindful of their actions, and most lawyers don't want to take the time to educate their clients about the entire process. If this is the case for you, then CP is safer, but at the same time, its also more stressful, since your guaranteed to meet face to face with the consulate. If you can educate yourself a lot more about the process by asking your lawyer questions and reading on forums like this one, then you might be a lower risk for AOS.

I met face to face with USCIS, since I had a random AOS interview, and it was quite stressful, but that is the exception and not guaranteed. I can only imagine how much more stressful an interview at the consulate can be, since if it goes awry, then you can't even get back to the US.
 
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Hi,
Yes, that's what I meant with I-140 with consular processing...meaning selecting CP instead of AOS when I submit my I-140, which my lawyer (law firm handles immigration for company i work for). As i would be paying all of the costs for the gc process, I would assume that the lawyer would let me know the next steps if ever i get the I-140 approved. But after reading a lot of the posts here and asking questions to my lawyer i'm more inclined to do AOS.

Thanks again for all your help and wish me luck!
 
Canadian university diploma

Hi again,

I was wondering, my lawyer wants me to have my bachelor's degree that i got from a Canadian university (Univ. of Waterloo) be evaluated to show that it is equivalent to a US Bachelor's degree. I'm just wondering that they should already be equivalent. Also, i completed my master's degree in the US in 12/2004 but my Labor Cert priority date was 6/2004 and got certified in 12/2006, will the master's degree help in my I-140 petition?
 
pinoyInDC said:
I'm just wondering that they should already be equivalent.
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They should be, but since Canada is a foreign country its still a nice-to-have to get equivalency evaluated by a professional company, so that there is no question about its equivalency.
pinoyInDC said:
will the master's degree help in my I-140 petition
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This depends on whether a master degree was a requirement in the LC.

Good luck!
 
GlobalFellow,
If you will be applying in EB3, then you will most probably have no choice but to file an I-140, and wait until your priority date is current before filing your I-485.

If you qualify for EB2 or even better, EB1, then read my note below.

An I-140 is filed by your company, not YOU so simply filing an I-140 does not show clear immigrant intent, since it’s the company filing in your name. There was a USCIS memo that was issued that clarified that simply filing an I-140 does NOT show immigrant intent. The company "could" file it without your consent, so therefore it’s not your fault that "they" want you to immigrate, eventually. It doesn’t necessarily mean you want to immigrate. By filing an I-485 you are clearly expressing YOUR choice to immigrate, not anyone else's, YOU are the one that consciously made the decision to immigrate by filing an I-485, and that is clear immigrant intent.

By filing an I-485, you show clear immigrant intent. For this reason, once you've applied for an I-485 you are no longer eligible for a new TN, since to qualify for a new TN, you cannot have dual intent. Dual intent is defined by having shown the intentions of wanting to switch to a permanent status (i.e. Green Card), while still in a temporary status (i.e. TN, H1b, L1, F1, B1, etc). Only H1, and L1 visas explicitly allow for dual intent, and so people can extend their H1 and L1 visas while their I-485 is pending. TN, F1, and B1 statuses do not afford you the right you to extend your status while your I-485 is pending. People in statuses other than H1 and L1 that have a pending I-485 must use an EAD to work once their status is expired, or gets voided by leaving the country, since statuses like TN do not allow you to renew once you’ve applied for an I-485.

If you file the I-485 and the I-140 concurrently, and the I-140 is DENIED for any reason, then once your TN has expired, you are out of status, and you are no longer eligible for a new TN because you've shown immigrant intent. You can call it game over, and pack up and go back to Canada. Although a good lawyer should help to ensure that an I-140 does not get denied, lost mail, disorganized USCIS practices, and unskilled adjudication officers are just a few reasons that are out of your control as to why your I-140 may inadvertently get denied.

On the other hand, if all you filed is your I-140, and it gets denied, you can still apply for a new TN, and re-file the I-140. Life goes on, and you learn from the mistakes you made on the I-140, and you try again.
Also, if you filed concurrently and the I-140 gets an RFE (Request for Evidence), and then I-485 can be put on "hold". With the I-485 on hold, this may cause a delay in getting the EAD, and AP.. If the TN expires during this time, you would not be able to work, since you would not have an EAD yet. Examples of this are the ability to pay RFE's for smaller companies, or education issues for EB2 cases. These are common RFE’s that are predicable, yet unavoidable in some cases, even with a great lawyer. The delay due to this RFE on the other hand is unpredictable, and this is where the issues arise.

Next, you could get your not-yet-approved I-140 inadvertently transferred to a district office, because the service center wanted to give you an interview for your concurrently filed I-485, not realizing that the you have a pending I-140. Although a district office does have the capability to adjudicate an I-140, in general, they will claim it is the responsibility of the service center, and will not even touch the case. If you were on a TN in this scenario, you would be caught in the loop of trying to get your I-140 back to the service center, all the while your EAD may not get approved before your TN expires because nobody at USCIS wants to admit to having your file. Again, bad luck due to USCIS error, and it’s out of your control. The risk is too high to take the chance.

Note for EB2 and EB1 applicants with current priority dates:
Even if your priority date is current, then if the current processing times at your service center are more than 9 months to process an I-140, then you have no choice, you can't file concurrently when adjusting from a TN. (math: 9 months to process I-140 + 3 months to process EAD = 12 months which is the maximum time allowable on a single TN) In this scenario, your TN will expire before you get an EAD in your hand, since your EAD application would be put on hold until your I-140 is approved, and since you filed an I-485, you're not eligible for another TN. A person in H1b would not run into this problem.

I am not a lawyer. But, my recommendation from what I've seen and read, is that someone who is in TN status and plans to file for AOS, should NOT file concurrently due to the fact that a TN does not afford you the right to dual intent.

Read more here, on the second post on this thread:
http://www.immigrationportal.com/showthread.php?t=152852
 
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curiousGeorge said:
Next, you could get your not-yet-approved I-140 inadvertently transferred to a district office, because the service center wanted to give you an interview for your concurrently filed I-485, not realizing that the you have a pending I-140. Although a district office does have the capability to adjudicate an I-140, in general, they will claim it is the responsibility of the service center, and will not even touch the case. If you were on a TN in this scenario, you would be caught in the loop of trying to get your I-140 back to the service center, all the while your EAD may not get approved before your TN expires because nobody at USCIS wants to admit to having your file. Again, bad luck due to USCIS error, and it’s out of your control. The risk is too high to take the chance.
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With respect, but the odds of this happenning, while non-zero, are in the same league as a fire at the service center destroying your file, or overworked employees shredding documents to reduce their backlog (don't laugh, that actually did happen at CSC in 99 or so).

As an aside, there is no requirement that the I-140 be approved before an EAD can be issued. The only requirement for an EAD is that there be a pending I-485, and the only pre-requisite for a pending I-485 is a pending I-140 and a current priority date. They do a cursory check to ensure that the basic evidence is present, but they don't hold up everything for months before the I-140 is issued.

Concurrent filing by and large works. Everything with immigration processing is a matter of risk versus rewards, and determining each individual applicant's tolerance for risk and their particular circumstance. Individuals with a less stable employment situation may HAVE to file concurrently, so that the 180 day clock gets started for AC21 portability. There are a variety of different situations and circumstances, and while avoiding risk is a good idea it is almost never the most important one.
 
CuriousGeorge,

Do you know what happens if you lose a job 6 months after getting an EAD and AP? You said in your previous post that you are still in status (AOS pending). In that case, can you still go for I-551 stamping while still unemployed? Does AC21 say that you are still eligible to be a permanent resident in that case?
 
TheRealCanadian said:
As an aside, there is no requirement that the I-140 be approved before an EAD can be issued. The only requirement for an EAD is that there be a pending I-485, and the only pre-requisite for a pending I-485 is a pending I-140 and a current priority date. They do a cursory check to ensure that the basic evidence is present, but they don't hold up everything for months before the I-140 is issued.
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I agree that it is not a requirement, but there have been cases on this forum, whether justified or not, when the I-485 and the EAD application were put on hold by USCIS because the I-140 was not yet approved. It took over 8 months to get the EAD approved in these cases. Again, I'm not saying its the right procedure, but it happens., and unlike a person in H1b status, a person in TN status does not have a safety net to protect him from this silly and usually remote instances.

TheRealCanadian said:
Individuals with a less stable employment situation may HAVE to file concurrently,
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If one's employment is that unstable, then I would recommend against adjusting status from TN altogether. Stick to H1b -> GC instead in that scenario, or find a differnt employer. Just my opinion. The risk is too high.
 
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bigboy00 said:
Do you know what happens if you lose a job 6 months after getting an EAD and AP?
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You remain in AOS pending status, if one of the scenerios I mentioned has already made your status change to AOS pending. Why do you specify "6 months after getting an EAD and AP"? This seems to have no relevance.
bigboy00 said:
You said in your previous post that you are still in status (AOS pending).
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Correct.
bigboy00 said:
In that case, can you still go for I-551 stamping while still unemployed?
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Legally no. In a practcal sense though, USCIS would not know you were unemployed, unless they issue an RFE for paystubs, or a letter from your employer, or if you go for an interview at the local office. There is a high chance of one of these happening, so you should get a job and take advantage of AC21 before your I-485 gets adjudicated.
bigboy00 said:
Does AC21 say that you are still eligible to be a permanent resident in that case?
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AC21 is not concerned with this specific scenario. AC21 allows you to switch jobs so that you ARE employed by a surrogate sponsor at the time of I-485 adjudication. It is the rules that govern the I-485 that require that you to be employed at the time of adjudication, not AC21. If you are unemployed at the time of adjudication, you are not eligible for a green card, and technically your case should be denied.
 
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curiousGeorge said:
If one's employment is that unstable, then I would recommend against adjusting status from TN altogether. Stick to H1b -> GC instead in that scenario, or find a differnt employer. Just my opinion. The risk is too high.
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But you're not considering the other risk - that employment is lost before AC21 portability kicks in and one needs to start over from ground zero. This is exactly why I suggest that people need to weigh their risks and decide which one is greater.

In my scenario, the AC21 memoranda clearly state that once the I-485 is pending beyond 180 days, then even if the I-140 is not approved (but is 'approvable as filed') then the case can proceed and permanent residence can be granted. Your option places a far higher premium on remaining in temporary status than it does on getting permanent residence at all.

I'm not suggesting that my route is always right, nor that yours is always wrong. But at some point risks become relative to each other and one needs to determine what risk/reward ratio is reasonable and acceptable.
 
TheRealCanadian said:
But at some point risks become relative to each other and one needs to determine what risk/reward ratio is reasonable and acceptable.
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I support that. Each person needs to make thier own decision, while weighing all the factors of thier specific case. And you do bring up a good point, if the priority date is even current in the first place to allow for concurrent filing.

It depends on whether GlobalFellow's job is at risk. If its not, then he should take the safe route, and avoid concurrent filing. If it is, then he has some risk weighing to do.
 
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Thanks for your answers. I was asking about "6 months after getting an EAD/AP" because I was not sure if AC21 allows you to still go ahead and adjust your status even if you are not employed. But your reply answered that question (that AC21 does not protect me if I am not employed).

Even though I am not facing any risk of losing the job, I am very nervous and anxious to get the GC since I have filed my I-485/765/131 and I am on TN!! :eek:

curiousGeorge said:
You remain in AOS pending status, if one of the scenerios I mentioned has already made your status change to AOS pending. Why do you specify "6 months after getting an EAD and AP"? This seems to have no relevance.
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