Question: If I'm married to a person with a Green Card and I have had a TN Visa for three years, can I request AOS or does my wife need to pursue her U.S. Citizenship first? She has had her Green Card for 11 years.
Reply: TN visa workers who are married to green card holders (permanent residents) generally cannot immediately file for Adjustment of Status due to the immigrant visa backlogs. Spouses of green card holders fall under the Second Preference category, which is currently subject to a backlog. Immigrant visa numbers are only available under this category for cases filed in 2008.
In this scenario a green card holder would only be able to file an I-130 petition for his/her spouse now. The TN visa worker would have to wait to file an AOS application (or immigrant visa application) until the government is issuing immigrant visa numbers under the Second Preference category for the date the I-130 was filed (this is called the "priority date"). This means that the spouse must maintain his/her TN visa status for a longer period of time in order to complete the green card process. As the TN visa classification has a temporary entry requirement, the pending I-130 petition can lead to problems when traveling or renewing the TN visa status.
TN visa workers married to U.S. citizens may be able to file both an I-130 petition and AOS application simultaneously. In this scenario, the TN visa worker qualifies as an Immediate Relative (a category not subject to immigrant visa backlogs). This can allow the TN visa worker to complete the green card process in one step (I-130 and AOS filed concurrently).In many cases, the I-130 petition and AOS application can be processed in a year or less.
In either scenario, TN visa workers must carefully assess whether they qualify for a green card, and what impact the filing for a green card may have on their TN visa status and ability to travel and continue working in the U.S. Read an overview and/or more articles on TN visas/AOS.