TN Visa change of employer by mail - also married to US Citizen

canadailove

canadailove

New Member
Hi there,

I'm a Canadian citizen. I currently work on a TN Visa in the US and I recently got married to a US citizen back in August. We have not yet applied for permanent residency (we're currently living apart due to her finishing school in a different state and apparently that doesn't pass some bona-fide marriage smell test). Frankly, I'm not sure I even want to apply for PR because I plan on moving back to Canada in a year or two.

Anyways, I just got a job offer in the US and the employer is willing to file my TN transfer via mail. My only concern is would they deny the visa on the basis on my marriage. I've read online that once you file a PR petition, then it becomes a problem but in my case I have not yet done that. So I'm confused and really nervous. I really don't want to lose this dream job offer and also don't want to lose the ability to visit my wife. Also, if my TN application does get denied, does my current TN remain valid?

Let me know your thoughts.

Thanks you
 
If your TN is denied due to marriage to a US citizen living in US, then your current TN will be killed as well.

But it is unlikely that they will determine that you are married, since I believe that is not a question on the I-129 form.

You should have submitted all the PR paperwork as soon as you were married, and you would have EAD now, and be free to take on any job. There is no "smell test" to get green card through marriage. That comes later when you apply for citizenship.
 
Interesting so basically there is a risk of me losing everything. I doubt I would have EAD by now because I know some who got married one month before me to a Us citizen and she was on L1 and she still doesn’t have EAD and they applied immediately.
 
Your current TN would be killed because DHS would have found you, not your petition, to be invalid. You would have displayed intent to immigrate, which is automatic when found to be married to a US citizen living in the US. If the application is initially denied (or RFE'd ) for technical reasons, then your old TN is still good.

But, as I said, applying with I-129 has little chance of discovering this marriage. It is more likely to be discovered when crossing the border with her on any entry from now on.

Did your L1 friend apply for EAD? It is not absolutely required for L1 holders, since they are allowed immig intent.

Bu for you, since not applying when first married, when are you going to apply? When you get denied entry? You didn't know about this offer 3 months ago. Companies much rather hire one on EAD than TN. Even your L1 friend know the advantage of filing ASAP.
 
Ok I guess I was stupid not applying for EAD immediately. I was misled by some other websites about the bona-fire marriage stuff. I’m hoping the I-129 will go through.

In the absolute worst case: Would I have to leave the US and essentially apply for green card from there? Or can I stay and apply for change of status?
 
If your I-129 is denied due to immigrant intent, you would not be able to apply for AOS from within US, as you would not have the legal status to file I-485. You would need to leave US and file for IR immigrant visa.

Again, your I-129 process is pretty safe, I wouldn't worry about this. It is travelling cross-border with your spouse that will get you denied.
 
Thank you so much for your help and reassurance.

I’ll definitely spread the word about this awesome forum and your services. Who knows maybe I’ll even use your services when applying for green card with my wife? (Not sure what your rates are)
 
nelsona said:
Your current TN would be killed because DHS would have found you, not your petition, to be invalid. You would have displayed intent to immigrate
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I don't see why his current status would be affected. Immigrant intent is a presumption applied at visa application and at entry. I don't see how it would violate the conditions of his existing status, or any basis for them to revoke his existing status.

nelsona said:
If your I-129 is denied due to immigrant intent, you would not be able to apply for AOS from within US, as you would not have the legal status to file I-485.
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Also, someone in the IR category do not need to be in status to file I-485.
 
canadailove said:
Ok I guess I was stupid not applying for EAD immediately. I was misled by some other websites about the bona-fire marriage stuff. I’m hoping the I-129 will go through.

In the absolute worst case: Would I have to leave the US and essentially apply for green card from there? Or can I stay and apply for change of status?
Click to expand...
They certainly do look at bona fides as at the green card application, but having a spouse away at school is not a problem for that usually as long as you have other evidence (continual communication while apart, relationship prior to the temporary separation etc). I think what nelsona referred to was that for naturalization , there is a requirement for actually living together.
Also EADs are currently taking around 4 months so no, you wouldn’t have had it yet. However of course the sooner you apply, the sooner you’ll get it.
Bear in mind that if you do an AOS you will need to apply for advance parole (usually combo with EAD and same length of time to get) to be able to travel out the US. If you travel outside before you get it while AOS is stil pending then your AOS is considered abandoned. So you’d be kind of stuck in place for a while if your wife files i485.
 
I don't see why his current status would be affected. Immigrant intent is a presumption applied at visa application and at entry. I don't see how it would violate the conditions of his existing status, or any basis for them to revoke his existing status.
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Marriage to a US citizen living in the US is considered irrefutable evidence of immigrant intent. As I said, this would not be found out at the I-129 process, but, if otherwise discovered, it would kill the I-129 and the current TN (since one does have to state what status they are in). He would have opened the way for pulling the current TN, in my opinion, just as if he had gone to the border to apply for new TN and be found inadmissible. USCIS is also permitted to determine inadmissibility and cancel current status and instruct the person to leave.
someone in the IR category do not need to be in status to file I-485.
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Quite right. Thanks for correcting.
 
Hi guys,

I'm still in the process of filing the I-129 with the employer but I just had a follow up question. If a few months down the road after my TN transfer is done, could we (as in me and my wife) start the process for green card? This is not necessarily my intent but I'd like to know my options.

Thanks.
 
Just like you should have done as soon as you married, you certainly could start the process. It would be best to wait for 3 months after I-129 submission date before doing so to avoid any fraud questions. In all that time from now until you got your EAD/AP you would need to remain in US to be safe.
 
Just an update for my petition was approved. We applied with premium processing and it took 8 days to approve. My worries were definitely unfounded. Also as an anecdata, I did this during the government shutdown (uscis is mostly unaffected).

Thank you for all the advice
 
So in 3 months or so, you need to begin the GC process (I-130/I-485/I-131/I-765), or you risk denial of entry next time you leave US with your spouse. You are now in the same position as any TNer living in the US that marries a USC (except you need to wait to file).

You dodged a pretty close bullet.
 
Yes big bullet dodged.

I can still get the paperwork prep started now with a lawyer, correct? That way we can have everything ready at exactly 3 months.
 
Certainly. Marriage-based GC should be able to be done w/o a lawyer, there are plenty of how-to-guides out there. You could have a lawyer do a once-over after you have completed your package, medical, etc.
 
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