Question: I am in the USA on my Canadian passport as a visitor for the past 1 month. Do I need to go out of the USA to apply for a TN visa or I can apply within the US as well? Also, I am about to marry an Indian National, who is on an H-1B visa. He has not applied for a green card. Please advise how this would affect my case for the TN visa.
Reply: The more efficient process for your TN would be to depart the U.S. and apply for the TN at a U.S. port-of-entry border crossing . Filing for a TN through the USCIS Service Center using Form I-129 while as a visitor can be tricky, not to mention time consuming. First, the I-129 petition can take 2-3 months for an approval (you cannot work until the petition is approved), but you can request expedited processing for an additional $1000 filing fee (decision within 15 calendar days).
Second, in order to be eligible for a change of status within the U.S., you need to provide proof that you possess authorized U.S. immigration status. This can be difficult for Canadian visitors because they usually do not receive an I-94 card, which documents authorized U.S. immigration status and is generally required for change of status petitions. USCIS may accept alternative evidence, such as a U.S. admission stamp in your passport, but because this would be unusual, USCIS may issue a request for additional evidence of your U.S. immigration status, which you may not be able to provide.
Marriage to an individual who possesses H-1B status, in and of itself, should not have an adverse effect on your prospects for a TN.