What happens to TN once I file I-130/485?

[curiousGeorge]

I had read elsewhere about a possible loophole to allow someone in my situation to delay having to take a leave of absence. It involved applying for a new TN through the mail via form I-129. This would be rejected, but I would be allowed to continue working in the meantime.

When you have a valid TN or a valid H1b, and you file for an extension via mail, your current TN or H1b is extended by 240 days (or until the extension is adjudicated, whichever comes first), even if your current TN were to expire the next day after filing the extension.

The same is not true for an EAD. If you don't have an EAD, and you have no other work permit available, you can't work, even if you filed to get an EAD. Basically once your TN expires, you won't be able to legally work until you get the EAD in your hand.

 

[bacon]

CuriousGeorge, I'm confused by your post. Are you saying that having filed for an EAD prevents me from filing for a TN extension via the mail?

I ended up talking with an immigration lawyer and he proposed the TN extension. He outlined the plan as follows:

By mail, we will file the TN extension with the Vermont Service Center. With the timely TN extension filing, it will give work authorization until the extension is adjudicated or when the EAD is obtained through the green card filing.

Once the EAD is obtained, we will withdraw the TN filing, or if the immigration service adjudicates and questions the TN filing before the EAD is obtained, we will delay responding (up to 90 days) to the government's TN request.​

The lawyer said that the TN filing would have no impact or implication on my green card filing.

Does this make sense or am I in for trouble?

 

[curiousGeorge]

Are you saying that having filed for an EAD prevents me from filing for a TN extension via the mail?

No. But, having filed for an I-485 prevents you from filing for a TN extension via the mail.

Implicitely, being eligible to file an EAD means that you have a already filed an I-485 as well.

By mail, we will file the TN extension with the Vermont Service Center. With the timely TN extension filing, it will give work authorization until the extension is adjudicated or when the EAD is obtained through the green card filing.
​

Your lawyer is correct.

The lawyer said that the TN filing would have no impact or implication on my green card filing.

Correct again.

I re-read your message. I think I get the jist of the loophole now. You would send a TN application now, after having filed you I-485. Since your TN is still valid, filing for a new TN will gain you time for your EAD to get adjudicated while the new TN is pending.

Sounds a little risky I suppose.

I think the extension only applies if your TN is approved. Don't quote me on this part, but if the TN is denied, then you would have been working illegally ever since the old TN expired.​

 

[bacon]

Update on my situation

We filed a TN extension a few days before my original TN Visa was set to expire.

Yesterday, I received email notification that my EAD has been approved and that a card has been ordered. Once I have it in hand, we will withdraw the TN extension petition.

So far, so good. Hopefully, the withdrawal of the petition doesn't cause any issues.

 

[gunt]

you can send a withdrawal letter to USCIS for the TN, but it is not necessary as the petition will be denied. and more importantly, you will not get the fee refunded regardless.

 

[cdnchris]

Agh, and I still don't have my EAD I still have over a month before my TN expires, but I don't like the fact it's still cutting close. I was actually thinking about trying to extend my TN despite my pending 485, for the extra 240 days, but I don't know, something seems kind of off about that.

 

[gunt]

wait until 1 week before the expiry of your TN, then send a renewal petition I-129 to VSC to extend the status for 1 year. VSC will send you a receipt notice which will allow you to continue legally in status while they adjudicate the petition. VSC is taking in excess of 4 months to process TNs currrently so that will buy you at least 120 days extra to wait for the EAD.

 

[bacon]

wait until 1 week before the expiry of your TN, then send a renewal petition I-129 to VSC to extend the status for 1 year. VSC will send you a receipt notice which will allow you to continue legally in status while they adjudicate the petition. VSC is taking in excess of 4 months to process TNs currently so that will buy you at least 120 days extra to wait for the EAD.

According to the lawyer I talked to, even if the VSC adjudicates and questions the TN filing before the EAD is obtained, you have up to 90 days to respond, so you can stall even longer.

I'm not sure if an official rejection to the TN extension petition will cause issues. Maybe that is why the lawyer wants to withdraw the petition after the EAD is received. I also had the impression that the extension petition would be withdrawn before the 90 day response was due.