The applicant here had been under TN visa status since 2006. In late 2008, the applicant was laid off. She did not depart the U.S., but filed an application to change her status to B1/B2 visitor status. USCIS denied the application because it did not find the applicant’s reasons for remaining in the U.S. as suitable for the B1/B2 classification. The applicant contacted us for assistance.
We informed her that once USCIS denied the B1/B2 application, she may start to accumulate unlawful presence, which could result in significant immigration penalties. The applicant was in a long term relationship with a U.S. citizen and decided to get married. Based on this relationship, she was eligible to apply for a green card as an “immediate relative.”
We then filed an I-130 petition and I-485 adjustment of status application on her behalf along with an application for an Employment Authorization Document (EAD). The filing of the adjustment of status application protected her from accruing any more unlawful presence. See Adjudicator’s Field Manual § 40.9 (b) (3) (A). The applicant was still eligible for adjustment of status even though she was no longer maintaining her TN visa status because of an exception to the ineligibility rules for adjustment of status.
Normally, an individual who is not in valid, non-immigrant status or has failed to maintain nonimmigrant status is not eligible to file for adjustment of status. See 8 C.F.R. § 245.1 (b) (5) and (6). However, individuals filing adjustment of status applications as “immediate relatives” (e.g. spouses of U.S. citizens) are exempt from this rule. Id.
The applicant obtained her EAD in a few months and then attended her I-130/AOS interview at a local USCIS office (about five months after filing). Here the government reviewed her application and interviewed her and her husband on their marriage. A decision was not issued at that time, but an approval notice came in the mail about two weeks later.