Priority date for GC is current, but spouse is on TN status

S

samincolumbia

Member
My priority date for GC in employment category has become current. My spouse is on TN visa which is coming up for renewal this October. My question is if I apply for I-485 with him as the derivative applicant, will it be in the system when he goes to the border to apply/renew his TN status?

Thanks!
 
Yes, he will not get a new TN (or be admitted) once he files his I-485. he needs to renew his TN now (1-129 can be filed six months ahead), get the new TN, THEN you file his I-485.
 
Thanks nelsona. My spouse does not think that his employer will file I-129 for renewal. They are very rigid when it comes to processes. He said he will ask and find out. What other option does he has? Can I file my I-485 for myself and my son now and later when he gets his TN at the border, can he file as a derivative applicant at that time?
 
He should not enter the US on TN status with preconceived intent to file I-485 during that stay.

He could file I-485 now, with EAD and AP, and hope that he gets his EAD by the time his TN status ends in October, so he can continue working. But then he would have no status to fall back on if your employment-based petition fails for some reason.
 
He will need to explain the situation to his employer. He is unlikely to be able to get a border TN now, and he would need to wait 90 days before filing (he is allowed to file after 90 days -- he is NOT forbidden to file after that date). EADs are not being issued in a timely way these days.

But, as I said, that is a long way off. I-129 can be filed today. If not his employer risks losing his employee.

As to the risk that your AOS fail, that is always a risk that TNers face. I would not be overly concerned about that.
 
Ahh...Did not even know about this 90-day rule until you mentioned it. Gee, so many rules and stipulations. Waited 10 years for GC/priority date to get current and now this. Thanks for the education. So, assuming his employer agrees to file his I-129...get it filed now, wait for 90 days after he gets his TN and then file his I-485. Can you confirm that I can file my I485 now and then file later for him, after he gets his TN + 90 days?
 
You could wait the 90 days, but I do not believe that is even a requirement if filing an I-129. I beleive this applies more to border/consular applications. Beware that 90 days brings you near the end of teh fiscal year, and we never know how priority dats will change in Aug/Sept.

Either way, he would definitely need to get the I-129 premium processed to mitigate any delays.
 
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My son's TD status (he is 14) is tied to my spouse's TN which expires this October. I believe his TD needs to be extended before I can file his i485. Filing I539 will take months and going to the border means waiting for 90 days before I can file his i485. Are there any other options? Will a receipt notice from i539 filing suffice?
 
samincolumbia said:
My son's TD status (he is 14) is tied to my spouse's TN which expires this October. I believe his TD needs to be extended before I can file his i485. Filing I539 will take months and going to the border means waiting for 90 days before I can file his i485. Are there any other options? Will a receipt notice from i539 filing suffice?
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He doesn't need to extend his status. He can stay as long as he files I-485 before (or even within 180 days after) his status expires.
 
Newacct, Most legal opinions state that I-94 must be valid to file I-485 (with few exceptions). Is there an exception that you are referring to?
 
nelsona said:
Newacct, Most legal opinions state that I-94 must be valid to file I-485 (with few exceptions). Is there an exception that you are referring to?
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They're in an employment-based category (EB1, EB2, or EB3), so INA 245(k) allows them to adjust status as long as they have not been out of status or illegally working for 180 days since their most recent admission. Of course, preferably they should file I-485 while in status, because they are technically deportable in the period between going out of status and filing I-485.
 
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