The applicant in this case, a citizen of Canada, had been working in the U.S. under TN visa status as a Psychologist for several years. The applicant married a U.S. citizen in November 2011. Her TN visa status was set to expire on March 29, 2012.
The applicant contacted our office to assist with the filing of a green card application based on her marriage to a U.S. citizen. Following our review of her case, we believed the applicant was eligible to pursue her green card by filing an adjustment of status (AOS) application.
Two Potential Issues
One of the issues our office was concerned about was ensuring that the applicant received her Employment Authorization Document (EAD) before her TN visa status expired.* Another issue was that the applicant had previously held J-1 visa status in order to attend a psychology internship program. According to the applicant, when she was entering the U.S. under her J-1, there was some confusion as to whether or not the U.S. Department of State or INS (now USCBP) believed she was subject to the 2-year home residency requirement. The applicant no longer had copies of her IAP-66 form (now DS-2019), which would have indicated if she was subject to this requirement.
J-1 Two-Year Home Residence Concerns
Individuals subject to the 2-year home residency requirement cannot file for a green card until they satisfy this residence requirement, or obtain a waiver. The only basis the applicant here could have been subject to the J-1 visa requirement was if she had used her J-1 status to receive graduate medical education or training. Our concern here was that USCIS might have thought that the applicant’s J-1 program involved medical training, and would issue a Request for Evidence (RFE) questioning the applicant’s eligibility to apply for AOS. An RFE would delay the processing of the AOS and the issuance of the EAD card, which could have resulted in a gap of employment authorization.
Since the applicant did not have her IAP-66 forms, we filed FOIA applications to try and get any records that would show she was not subject to the 2-year home residency requirement. We also obtained a letter from the school where the applicant attended her J-1 visa program. This letter explained that the J-1 program involved training only in psychology techniques and procedures, and did not involve any graduate medical education or training. We also included documentation explaining the difference between the training a psychologist receives with that of a psychiatrist, who attends medical school and receives a medical degree.
Filing of AOS
Following completion of the paperwork, our office filed the I-485 Application for Adjustment of Status (AOS) and other forms on January 23, 2012. To avoid abandonment of her AOS application, we advised the applicant to not depart the U.S. at this time. Normally, the Employment Authorization Document (EAD) and Advance Parole (travel) cards are issued within 30-60 days of filing the AOS application. As the applicant’s TN status was to expire soon, and she still had not received her EAD card, yet, our office helped prepare a request for expedited processing of her EAD. However, when the applicant went to the local USCIS office to make this request, the officer informed her that the EAD application was nearly complete. The applicant received her EAD card on March 24, 2012 – 5 days prior to the expiration of her TN.
On March 12, 2012, our office received the notice scheduling her for the AOS interview for April 9, 2012. The adjudicating officer approved her application the same day of her interview, and informed the applicant that she would be sending the approval notice in the mail that day. The applicant received her actual green card on April 16, 2012.
Apparently satisfied with the documentation we submitted as part of the AOS application, USCIS never issued an RFE on the J-1 visa issue. This was a good thing since the U.S. Dept. of State responded to our FOIA request by stating that it did not have the applicant’s IAP-66 forms on file. As of today, our FOIA requests with USCIS are still pending.
The applicant’s adjustment of status application, like all of these types of cases, was initially processed by the National Benefits Center, and then completed at the applicant’s local USCIS office in Houston, Texas.
* Once the AOS application was filed, the applicant would not be able to renew her TN visa status due to immigrant intent. She, therefore, would need to rely on the Employment Authorization Document (EAD) received as an ancillary benefit to an AOS application in order to lawfully continue working with her employer.