Question: Is it legal for company XYZ to file a green card application for me through consular processing while I’m on a TN visa with company ABC? If legal, can it jeopardize my TN status while renewing or crossing border?What's the best way of doing it?
Reply: Yes, it is permissible provided you intend to work at XYZ and commence employment there once the green card application is complete.
CBP often considers a pending green card application as a sign of immigrant intent sufficient to refuse the issuance of, or admission to the U.S. under, a TN. However, if you select to pursue the green card through immigrant visa processing (“IVP”), you can mitigate the issue of immigrant intent because it ensures your departure from the U.S. Under the IVP process, you must depart the U.S. and attend an interview at the U.S. consulate before you may obtain your green card. If you’re approved at the interview, the consulate will issue an immigrant visa, which you will use to enter the U.S. under as a lawful permanent resident. You also have a stronger case for establishing non-immigrant intent during your TN renewals because you seek permanent employment with company XYZ, and not the company you currently work for under TN visa status.
When XYZ files your I-140 immigrant worker petition it should indicate on the petition that you intend to apply for an immigrant visa at the U.S. consulate and not file for adjustment of status. Once the I-140 is filed, it may be prudent to process your TN extensions for ABC through the Vermont Service Center, as this will avoid scrutiny at the border. If you must file for the TN at the border, or otherwise travel, you should have a copy of your I-140 petition and any other documentary evidence available to prove that you will apply for the immigrant visa at the U.S. consulate and will not adjust status.