TN visa workers considering applying for Adjustment of Status (AOS) must also assess the potential issues that arise on account of filing for an AOS application while under TN visa status.
Preconceived Intent
U.S. immigration guidance distinguishes those who are planning to enter the U.S. under a temporary visa like a TN and immediately apply for a green card, from those who have entered the U.S. and later decide to pursue a green card.
U.S. immigration officials may allege an applicant committed fraud and deny an AOS application if they believe the applicant had a "preconceived intent" to enter the U.S. under a temporary visa classification (like the B1/B2 visa, F-1 visa, or TN visa) and then remain permanently in the United States by filing an AOS application. See, e.g. In re X (AAO Sept. 7, 2007).
According to a rule developed by the U.S. Department of State, U.S. immigration officials may presume an individual misrepresented his/her intent if the individual engaged in conduct contrary to his/her temporary visa e.g. by marrying a U.S. citizen or by filing for AOS within 90 days of entering the U.S. 9 FAM 302.9-4(B)(3). If an individual engages in such conduct more than 90 days after entry into the U.S., immigration officials may not make this presumption unless they believe the individual misrepresented his/her intent. 9 FAM 302.9-4(B)(3).
USCIS has since stated that while the Dept. of State’s 90-day rule is “not binding on USCIS officers…USCIS officers may find that an applicant made a willful misrepresentation, especially if the violation or inconsistent conduct occurred shortly after the consular interview or admission to the United States.” USCIS Policy Manual, Vol. 8, Part J, Ch. 3 (A) (3).
Travel Restrictions
TN visa workers who file for AOS cannot depart the U.S. after filing their AOS application. Otherwise, the green card application will be considered abandoned. Such individuals will likely not be able to re-enter the U.S. under their TN.
TN visa workers must file an I-131 application for travel authorization (advance parole), which is applied for as part of AOS application and is issued generally in approx. 4-6 months after filing. Due to delays from the Covid-19 pandemic, processing times for advance parole applications have slowed significantly not taking anywhere from 6-12 months.
Requests for Evidence (RFEs) issued by USCIS can delay processing of the advance parole application.
Use of advance parole to travel and re-enter the U.S. will invalidate an individual's TN status. In this case, individuals must then rely on their Employment Authorization Document for work authorization (see below).
More on TN visas & advance parole.
Employment Authorization & Possible Restrictions
Individuals may continue working under their TN visa status after filing an AOS application. See 8 CFR 274a.12(c)(9).
However, they will not be able to renew their TN, or apply for a new TN with a different employer after applying for AOS. (The filing of an AOS application is a significant sign of immigrant intent, which conflicts with the temporary entry requirements for TN status.)
In order to continue to have employment authorization during the processing of the AOS application after their TN expires, TN visa workers should file an I-765 application for an Employment Authorization Document (EAD) when filing their AOS application.
The EAD is generally now issued on the same card as the Advance Parole travel authorization, and is usually issued in approx. 4-6 months of filing the AOS application. (Again, RFEs may delay the issuance of the EAD.) Due to delays from the Covid-19 pandemic, processing times for advance parole applications have slowed significantly not taking anywhere from 6-12 months. However, USCIS is making efforts to speed up at least the processing of EAD applications.
To avoid gaps in employment authorization, TN visa workers should file these applications at least 12 months prior to the expiration of TN status.
An EAD allows open market work authorization, i.e. it is not tied to a specific employer or occupation.
However, use of the EAD will likely be considered to have invalidated an individual's TN status.
Potential Out of Status Issue
Applying for AOS does not end an individual's TN status. However, an AOS application also does not extend an individual's nonimmigrant status. See AFM 23.2 (n) (2) (C) ("the filing of an application for adjustment...is an action which neither preserves nonimmigrant status, nor violates such status"); AFM 23.5 (d) (C) (ii) (no violation of nonimmigrant status merely by filing AOS provided filing occurs before status expires).
As such, if an individual's TN status expires while the AOS application is pending, he/she will be out of status. If the status violation comes to the attention of immigration officials, the individual could be placed in removal proceedings, but he/she may still be allowed to remain in the U.S. while the AOS application is pending. AFM 23.2 (n) (2) (C).
If the TN visa worker filed his/her AOS application before the expiration of his/her TN status, while still out-of-status, he/she will be considered in a period of authorized stay. This will prevent the individual from accumulating unlawful presence that could result in a potential bar to the U.S. in the future. USCIS Memo Unlawful Presence, pgs. 9-10.
If a TN visa worker's status expires and the application is denied, the individual may also be placed in removal proceedings.