“Let not U.S. immigration laws impede the marriage of true minds.”

– Adaptation of William Shakespeare’s Sonnet 116.

TN Visa Professionals and Marriage to a U.S. Citizen.

Question: I am a Canadian citizen and work in the U.S. under NAFTA as a TN. I am now engaged to a U.S. citizen. What happens to my TN visa status once I get married? Can I renew my TN? How do I apply for my green card?

Answer: When a Canadian citizen working in the U.S. under TN visa status marries a United States citizen, the Canadian citizen still retains his or her TN non-immigrant status. There is no immediate change to your non-immigrant status. After your marriage, you become eligible for lawful permanent resident status (green card) as the spouse of a U.S. citizen. Once you have established eligibility for a green card based on marriage to a U.S. citizen, you will need to carefully consider an immigration strategy that will allow you to continue your work authorization in the U.S. during the green card application process.

1.  TN Visa Professionals & Nonimmigrant Intent.

A TN visa professional must maintain bona fide nonimmigrant intent throughout the TN professional’s stay in the United States. The regulations provide that a TN applicant cannot intend to establish permanent residence in the U.S. and must satisfy immigration officials that the proposed stay is temporary and has a finite end. See 8 C.F.R. § 214.6 (b). This means the TN professional must intend to depart the U.S. at the conclusion of the TN employment. At the moment a Canadian citizen applies for a new TN or an extension of or change to TN status, the applicant cannot intend to remain permanently in the U.S. after the TN is approved.

2.  Marriage to U.S. Citizen & Effect on TN Visa Status.

If an applicant is married to a U.S. citizen, immigration officials may deny admission or the extension of TN status under NAFTA because they believe that the applicant intends to remain in the U.S. permanently. Spouses of a U.S. citizen qualify for Immediate Relative status and are exempt from the worldwide numerical limitations set for immigrant visas. They may therefore apply for a green card immediately without having to wait for an immigrant visa number to become available. See Immigrant Visas Numerical Limitations.

This situation is distinguishable from TN visa professionals filing for employment based green cards where an immigrant visa may not be available for several years due to backlogs. Because of this immediate access to a green card, immigration officials suspect that when a spouse of a U.S. citizen applies for a TN (initial or an extension), he or she intends to remain in the U.S. permanently after approval of the TN application. This may lead to a denial of admission to the U.S. under TN status or the denial of an I-129 change of status (“COS”) or extension of status (“EOS”) petition for a TN.

3.  Green Card Solutions for TN Visa Professionals Married to a U.S. Citizens.

When a Canadian citizen working in the U.S. under TN visa status marries a United States citizen, and then wishes to file for lawful permanent residence (a green card), an immigration strategy needs to be developed to ensure continued admission to the U.S. and employment authorization during the processing of the green card application. The immigration strategy will need to determine whether the green card should be obtained by filing an application for adjustment of status or through immigrant visa processing. This decision depends upon the particular facts of each case and must take into consideration several factors such as the need for continued work authorization, the ability to travel during processing of the green card application, and alleviating risks of denial based on intent issues.

a. Best Practice: Filing the I-130 Petition and Immigrant Visa Processing.

If a Canadian citizen working in the U.S. under NAFTA TN status marries a U.S. citizen, generally the safest and “cleanest” route to a green card is to file the I-130, Petition for Alien Relative, and then proceed with immigrant visa processing at the U.S. consulate in Montreal. This strategy will minimize the risk of immigrant intent allegations, and will ensure continued employment authorization under TN visa status and the ability to travel while the green card application is processing.

i.  Continued Work Authorization.

A Canadian citizen who is married to a U.S. citizen may continue working in the U.S. under TN status provided he or she is pursuing a green card through immigrant visa processing at the consulate. An applicant for a TN (initial, change of status, or extension) is in a better position to argue bona fide nonimmigrant intent when he or she is pursuing a green card through immigrant visa processing at the consulate. In this scenario, the TN applicant cannot obtain his or her green card without first obtaining an approved I-130 petition, filing the initial application materials for immigrant visa processing, and then departing the U.S. at the completion of the process for an interview at the U.S. consulate in Montreal. Because the TN applicant must return to Canada to complete the immigrant visa processing and obtain the green card, the TN applicant presents sufficient evidence that his or her current admission to the United States as a TN visa professional would be temporary and finite.

ii.  Continued Travel Permission.

In addition to alleviating concerns over a TN applicant’s perceived immigrant intent during the green card application process, filing for the green card under immigrant visa processing will allow the TN professional to travel to and from the U.S. without complication. There are no explicit travel restrictions when a TN visa professional has a pending green card application via immigrant visa processing. A TN professional who has filed for a green card via immigrant visa processing may continue to travel in and out of the U.S. by presenting his or her valid I-94.

b. Adjustment of Status - Potential Risks and Availability in Limited Situations.

It is important to remember that the burden is on the spouse of the U.S. citizen to prove bona fide nonimmigrant intent at the moment the application for a TN is submitted or when the I-129 petition for COS or EOS for a TN is filed. This can become problematic when an individual plans to apply for a TN (initial, change of status, or extension) and then pursue a green card by filing the I-130 petition and an I-485 application for adjustment of status (“AOS”).

The adjustment of status application allows an individual to remain in the U.S. until the green card application process is complete. The trouble here is that at the moment the application for the TN is made, the individual intends to remain permanently in the U.S. after admission to the country as a TN worker. If an immigration officer discovers that an applicant for a TN intends to file an adjustment of status application after admission to the U.S. or has already filed an application for adjustment of status, the officer may deny the TN application based on the requirement that a TN applicant prove bona fide non-immigrant intent.

i.  Potential Preconceived Intent Issue.

Applying for a TN and then pursuing a green card by filing the I-130 petition and an I-485 application for adjustment of status may also jeopardize the approval of the adjustment of status application itself. The decision to approve an application for adjustment of status is purely discretionary – much like the decision to approve an application for a TN. One of the factors considered in this exercise of discretion is the issue of preconceived intent.

A preconceived intent to immigrate at the time of entering the U.S. as a non-immigrant (such as TN status) can be a basis to deny an application for adjustment of status. An applicant may offset this adverse factor by presenting evidence that would favor an approval. For example, where the preconceived intent is the only negative factor, an application for adjustment of status may be approved where the applicant is an immediate relative (this includes spouses) of a U.S. citizen.

ii.  Travel Limitations.

TN visa professionals applying for adjustment of status will also need to be aware of the consequences of traveling outside the U.S. during the processing of the adjustment application. USCIS regulations provide that an application for adjustment of status is abandoned when the applicant departs the U.S. while the application is pending without first obtaining a travel document (advanced parole). A TN professional with a pending adjustment application will have to file for and receive a travel authorization document in order to leave the U.S. without abandoning the adjustment application. This rule does not apply to individuals in H-1B or L-1 visa status.

iii.  Maintaining Work Authorization.

Another concern for Canadian citizens in TN status considering filing for adjustment of status is the issue of continued work authorization. Once a TN visa professional files an adjustment application, he or she generally may not obtain an extension or renewal of TN status.

Applicants for adjustment of status may apply for a separate employment authorization (known as an EAD) when they file their adjustment applications. USCIS is required to make a decision on the employment authorization within ninety days. A problem may arise where a TN professional has filed for adjustment of status and for an EAD, and his or her TN I-94 expires before the EAD application is approved. Immigration officials would deny an application for an extension of the TN based on immigrant intent as evidenced by the pending adjustment application.

As result, this individual would be without work authorization until the EAD is approved. Immigration regulations provide that continued employment during this time may not necessarily lead to a denial of an adjustment application for the spouse of a U.S. citizen. However, continuing to work during this gap may subject the employer to sanctions for unauthorized employment.

iv.  Legitmate Scenario for AOS.

Where a Canadian citizen has already obtained TN visa status, and decides after admission to move forward with an application for a green card based on marriage to a U.S. citizen, he or she may file for adjustment of status. To minimize the risk of any preconceived intent issues, the applicant should file for adjustment several months after admission to the U.S.

If this individual has to travel outside the U.S. while USCIS reviews the adjustment application, he or she should obtain a travel document first. The applicant also needs to carefully plan the application to avoid facing a gap in employment authorization if the EAD is not approved before the TN I-94 expires.

4.  Conclusion.

A Canadian (or Mexican) citizen may properly work in the U.S. under NAFTA TN visa status and file for lawful permanent residence. With careful planning a Canadian citizen married to a U.S. citizen may both file for a green card and continue to work in the U.S. under TN visa status. To avoid delays and the risks of denials or other headaches, a successful applicant will develop an immigration strategy before the need for a renewal of TN status or the filing of the I-130 immigrant relative petition. Prudent planning is the key to successfully maintaining TN visa status and obtaining a green card.

Individuals in TN visa status considering marriage to a U.S. citizen, or whom have already married a U.S. citizen should consult with an immigration attorney in order to obtain a viable immigration strategy to successfully meet both personal and employment goals.

Revised June 18, 2008.