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TN Visa Status with a Pending Green Card Immigrant Petition

Once you have been admitted to the United States in TN visa status, your circumstances may change so that you become eligible for a green card. Although you can be the beneficiary of a green card petition while in the US in TN status, you should be careful doing this since problems may arise because TN status requires you to maintain nonimmigrant intent. If you have questions about the TN visa and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.

Can I apply for a green card while maintaining nonimmigrant intent?

Customs and Border Patrol (CPB) guidance provides that you must have nonimmigrant intent at the time you apply for TN admission into the US, but does allow you to have a future intent to immigrate without abandoning your TN nonimmigrant status, so long as you have nonimmigrant intent when you were admitted. Becoming a green card petition beneficiary is a manifestation of your intent to stay in the US, and at that point you may no longer have nonimmigrant intent. This means that once the green card petition is filed, you can still stay in the US in TN status, but any applications for TN status extension or US readmission in TN status may be denied on the basis that you lack nonimmigrant intent.

Can I establish nonimmigrant intent while my green card is pending?

Legacy Immigration and Naturalization Service (INS) guidance says that if you have an approved I-140 immigrant green card petition, you should not be denied TN admission or extension solely on that basis, if you can still establish that your intended TN stay in the US will be temporary. Therefore, you could technically get TN admission or extension while your green card petition is pending, but it’s not easy. First, you would need to establish that your current TN work objective is totally separate from your future intent to immigrate. Second, you would need to establish that your current TN work assignment has a specific ending date, and that you intend to depart from the U.S. on that date. A good immigration attorney can look at your case and help you gather the appropriate evidence necessary to accomplish this.

Consular processing avoids the immigrant intent problem

If your immigrant visa petition will make a green card available to you before your current TN status expires, you can avoid the immigrant intent problem by selecting consular processing outside the US on Form I-140 rather than adjustment of status in the US. The reason for this is because once you ask for consular processing, this virtually guarantees that you intend to depart the US before becoming a lawful permanent resident.

Should I change status to another visa?

Being the beneficiary of a green card petition should not disturb your current TN visa status. And if you can get your green card status before your TN status expires, then there should not be a problem. However, be careful if your green card petition will be delayed due to a priority date queue, and if your TN status will expire before your green card status is approved. In this situation, you may want to consider changing status to another nonimmigrant work visa such as the H-1B or the L-1, which do not require you to establish nonimmigrant intent. If you would like further information about the TN visa or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.

Client Reviews
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