TN and adjustment of status

lisani

Registered Users (C)
I am currently on TN visa that will expire next year, I will renew it by mail as I live in Florida( long way from Canada!). My question is the following:
I am Cuban born, canadian naturalized. I can apply for permanent residence in the US under the Cuban adjustment act which bypassses all procedures of labor certification as long as I remained for one year in US. Can I file the application for Gc and employment authorization as soon as I renew my TN, what is going to happen to my Tn status once I file?
TIA,
Sincerely,
Lisani
 
You can apply for a GC after you have renewed your TN. Some have advised that you wait 90 days after the renewal to avoid claims by the USCIS that you did have immigrant intent while you applied for a non-immigrant visa (TN).

Once you have applied for the GC and the employment authorization, you will remain in TN status until either the GC adjustment of status is approved or you use the Employment Authorization Card to work. If you use Employment Authorization Card to work while the GC is pending approval, your TN will be invalid and you will be classified as "pending Adjustment of Status".

The one issue to concern yourself with is the ability to re-enter the US while your GC is pending. As soon as you file the GC application you will not be able to re-enter the US unless you have an Advance Paroll document. Your TN will be invalid the instant you leave the US. You would have to obtain the AP and the EAD before leaving the US in order to re-enter and to work as your TN will not exist.
 
I’m in a similar situation where I’m on TN and I’m ready to submit AOS. You should consider the following. If you submit a mail extension you must wait until it’s approved and in your hand before you submit AOS. Merely having a pending renewal might not be sufficient. If you submit AOS while you have a pending TN then you will most probably be denied TN. Also you should only file AOS while you have time on your I-94. Don’t count on the 240 day after you apply for an extension as valid status. That period is validated only if the extension is approved. Also all TN’s are processed in Vermont and they are very slow. I have a mail-in TN pending since May 11 so mail your renewal early.
 
Comment

DBEL,

They say file the mail-in extension 45 days prior to the date TN expires to allow ample time for processing.

You maintain (and I believe you are correct) that Vermont is slow and bogged down. You are saying you filed over 4 mths ago and no reply yet.

How the heck can one NOT run out of status if they cannot process these in a timely manner ???

Good grief.
 
DBEL said:
If you submit a mail extension you must wait until it’s approved and in your hand before you submit AOS. Merely having a pending renewal might not be sufficient. If you submit AOS while you have a pending TN then you will most probably be denied TN.
My experience:
Although the current TN was still valid for another 4 months, in March 2002 I submitted my 5th TN Extension via mail. A few weeks later in April 2002 I sent my I-485, EAD, and AP applications. My EAD arrived in May, along with the AP a few weeks later. In June I got the TN extension, approved.
DBEL said:
Also you should only file AOS while you have time on your I-94. Don’t count on the 240 day after you apply for an extension as valid status. That period is validated only if the extension is approved.
This is very true. I you file for AOS after your I94 has expired, then you have filed while you were out of status, and therefor you are not eligible to "adjust status" since you had no status to begin with. This would be a guaranteed denial of the I-485. The only exception of course is if you were filing in a family based category sponsored by your spouse, since they ususally forgive being out of status in this situation.
 
curiousGeorge said:
My experience:
This is very true. If you file for AOS after your I94 has expired, then you have filed while you were out of status, and therefor you are not eligible to "adjust status" since you had no status to begin with. This would be a guaranteed denial of the I-485. The only exception of course is if you were filing in a family based category sponsored by your spouse, since they ususally forgive being out of status in this situation.

Not necessarily. If it's an EB case, then 245k will forgive up to 180 days of being out of status.
 
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