TN renewal

[RipeAvocado]

Hello all,

I have received my TN status back in Oct 2019 crossing over from Rainbow Bridge and it is due in Oct 2022. I have just extended my contract with my employer for another 2 years (exp Dec 2024) and wanted to find out any advice as to how long before expiry can I start the renewal process? My employer is fully supportive in every way so perhaps exploring EB3 is a better option? Any general advice anyone may have would be highly appreciated.
One thing to note, I have also married to Green Card holder (NOT citizen yet) in May 2020 and have filed I-130 (and I-130A) which has not moved from the "your application has been received" state since then. It's been almost 2 years!
I'm located in TX at the moment. Can TNs be renewed at airports? I've read that it's an option. I would definitely want to avoid traveling all the way to Rainbow Bridge again or exiting the country.

Many thanks and good luck to all

 

[newacct]

Why didn't you file I-485 for Adjustment of Status with your I-130?

 

[RipeAvocado]

If I remember correctly the I-130 needs to be approved first. I just researched again and I am not eligible for concurrent filing because my spouse is not a US citizen as I have noted above, but only a Green Card holder.

 

[newacct]

If I remember correctly the I-130 needs to be approved first. I just researched again and I am not eligible for concurrent filing because my spouse is not a US citizen as I have noted above, but only a Green Card holder.

This is incorrect. I-485 can be filed concurrently (i.e. filed with I-130 or while I-130 is pending) for any family-based category as long as a visa number is available for the priority date. Since F2A has been current since 2019, that means anyone filing F2A since then could have filed I-130 and I-485 together. You can file I-485 now, while the I-130 is pending, and you can file I-765 for EAD and I-131 for Advance Parole for free together with it, so you can continue to work and travel.

 

[RipeAvocado]

Hmmm...Please provide your sources if you can. It clearly says on USCIS website:

Who can file concurrently?​

We allow concurrent filing for:

• Immediate relatives of U.S. citizens living in the United States;

In addition, this website fam.state.gov/fam/09FAM/09FAM040217.html under section 402.17-7 TEMPORARY ENTRY clearly states that display of an immediate intent to immigrate is grounds for refusal. Filing I-485 right now will directly indicate my intent to receive permanent residency as soon as possible which would be a violation of not having dual-intent. This section also says:

An intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.

Thus, filing just I-130 and not filing I-485 can be seen as intent to immigrate in the future, not right now. And since it is a marriage-based petition it is in no way connected to the current temporary trip right now.
Besides, being a few months away from filing for renewal I wouldn't want to risk being rejected.

 

[newacct]

8 CFR 245.2(a)(2)(i)(B):

If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 and 245. For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.

INA 201(b)(2)(A)(i) is the Immediate Relative category. INA 203(a) are the family-based categories F1, F2A, F2B, F3, and F4. INA 203(b)(1), (2) and (3) are the employment-based categories EB1, EB2, and EB3.

USCIS Policy Manual, Volume 7, Part A, Chapter 3, section C, which references the above section of the regulations:

Concurrent filing of the adjustment application is possible only where approval of the underlying immigrant petition would make a visa number immediately available. Concurrent filing of the adjustment application is permitted in the following immigrant categories:
* Family-based immigrants, including immediate relatives, and widow(er)s of a U.S. citizen;
* Violence Against Women Act (VAWA) self-petitioner;
* Employment-based immigrants in the 1st, 2nd, or 3rd preference categories;
* Special immigrant Amerasians;
* Special immigrant juveniles;
* G-4 international organization employees, NATO-6 employees, and certain family members; and
* Certain members of the U.S. armed forces.

Filing I-485 right now will directly indicate my intent to receive permanent residency as soon as possible which would be a violation of not having dual-intent.

I don't really understand your point. Immigrant intent matters when you try to enter the US. But you are not trying to enter the US right now (aren't you in Texas?). So why is that relevant? You did not have intent to immigrate the last time you entered. Sure, if you leave the US in the future and seek to enter on TN again you could be denied. But you wouldn't leave the US before getting Advance Parole anyway, as that would cause your I-485 to be automatically abandoned.

 

[RipeAvocado]

Thank you for that. It clearly states in your own source that you provided that I must be an immediate relative of a US citizen. In that case, the visa is always available and concurrent filing is possible and makes sense. In my case, my spouse, as I've mentioned, is not a US citizen, but a Green Card holder, and in this case, the visa is not immediately available. In fact, I clearly remember when filling out I-130 that this distinction (am I a spouse of Perm Res or US citizen) had to be made explicitly on the application form.

Here's the text from our Notice of Receipt:

Notice Type:
Receipt Notice Amount received: $535.00 U.S.
Section: Husband or wife of permanent resident, 203(a)(2)(A) INA

Regarding intent, when I drive to the border to get my TN renewed the CBP officer handling my case will interpret my I-485 filing as an intent to immigrate and deny my TN request.

EDIT: Maybe I'm just overthinking this all? But I do not want to be in violation and am approaching this with caution.

 

[newacct]

Thank you for that. It clearly states in your own source that you provided that I must be an immediate relative of a US citizen.

No it doesn't. It includes all Family-based immigrants. F2A are family-based immigrants, are they not? It says family-based immigrants include immediate relatives, but it does not say that they are limited to immediate relatives. Employment-based immigrants are also included, and are not immediate relatives. The regulation explicitly includes INA 203(a), which are the family-preference categories of F1, F2A, F2B, F3, and F4.

Regarding intent, when I drive to the border to get my TN renewed the CBP officer handling my case will interpret my I-485 filing as an intent to immigrate and deny my TN request.

But why do you need to get TN renewed? You would apply for EAD (for free) with your I-485, and if you file now you should get it before October, so you can continue to work on the EAD even if you don't have TN status.

 

[RipeAvocado]

No it doesn't. It includes all Family-based immigrants. F2A are family-based immigrants, are they not? It says family-based immigrants include immediate relatives, but it does not say that they are limited to immediate relatives. Employment-based immigrants are also included, and are not immediate relatives. The regulation explicitly includes INA 203(a), which are the family-preference categories of F1, F2A, F2B, F3, and F4.


But why do you need to get TN renewed? You would apply for EAD (for free) with your I-485, and if you file now you should get it before October, so you can continue to work on the EAD even if you don't have TN status.

I see. Yes, I believe you are correct and concurrent filing is not only limited to those cases when the petitioner is strictly a US citizen.
Even though I still do find these two screenshots (both taken from USCIS) contradicting each other:



With this:


Nevertheless thank you for your input and info. I will be looking into this matter further and simply abandon my TN renewal altogether.

 

[nelsona]

The AOS or I-485 forum would be a better place for this discussion.