TN Visa holder wanting to marry a US citizen

[bluberry 0]

Hello there,

I heard great things about this site so I wanted to try it out since I had a few questions.

I have been working in the US for 2.5 yrs but lived in Canada and commuted daily. I got engaged recently and moved to the US to be closer to work and plan the wedding. I'm Canadian with a TN visa and was not aware of the dual intention thing. When I crossed the border I did mention that I was engaged to an American. The officer told me this would cause an issue and had me sign a paper stating the law that a TN holder can not persue a greencard since a TN is not a dual intent visa.

I read a lot that this could be possible if it is timed right, and I believe my visa timing would accomodate this. I really don't want to move back to Canada & lose my job. I want to marry my fiance...What should I do? Is this going to be a problem??

Thank you so much.

[Mestis 1]

I was a TN holder for 4 years, so I understand the dual intent thing can be rough :-T

I am not a lawyer.. But I think you have two options so you can still continue to work in the US. I think the CR-1 would be the best option...

1) Get married, and apply for a CR-1. You can keep your TN status with the CR-1 (actually, you would need to keep it to work legally in the US). You would still be admissible for the TN, since you have to go back to canada to do your CR-1 interview so you do not break the dual intent. And you could still travel back and forth if you wanted to.

You can apply for the green card with a TN, just not through an adjustment of status. And if you want to work without stoping working, I would go through the CR-1 since you'll have your green card when you get the visa.

2) Yes, you could try the AOS... But then since you signed paperwork about the Ajustment of status and TN at the border, might not be in your favor... (And some would say Visa fraud, since when you crossed the border, you knew you would go for the AOS...)Also, the moment you get onto the AOS process, you can not go back to Canada at all until you get the Advance parole and Work Autorization.

Edited March 29, 2010 by Mestis

[Hugglebuggles 60]

Just a thought I want to throw out there...

You can marry your US fiance in the US with your TN visa. The problem is attempting to adjust your status, or as the CBP put it, 'perusing a green card.' Since you're already living in the US under your TN status, why not marry your fiance as you wish, and just continue to live as you are currently- under your TN status. Just because you are married doesn't mean you need to apply for a spousal visa right away. It seems like it might be a good short term solution.

As for signing a piece of paper at the border, that sounds rather strange to me. I'm really not sure that would be a legally binding document that would prevent AOS. I'm not saying it won't cause you a problem, I'm just suggesting that the primary goal of the officer may have been to scare you into not attempting to adjust your status. If possible, consulting a good immigration lawyer may be rather helpful to you.

[Wishing 1]

I lived in the US under a TN visa for 6 months to be closer to my US boyfriend. We were in a similar quandry of pursuing AOS vs. going the K1 route (although we did not consider the CR1). Did research onto both sides...AOS could have been ok....maybe...but ultimately there is a risk that AOS will not be approved due to the dual intent clause. Also we weren't certain but we have been together for some time and so because we had an ongoing relationship long before the TN, who knows how USCIS would have interpreted that with an application. Plus you signed a form saying you would not pursue permanent status from TN...for me that would be enough motivation to definately not go the AOS route. For us we did not want to take the risk and so I moved back home to Canada and am waiting through the K1 process. I did not pursue the CR-1 route tho...

As another member said...maybe this is a case to go see a decent immigration lawyer. I would recommend getting more than one opinion. We went to see a couple lawyers in US and they each had a slightly different take on the process and the level of risk. In the end we picked the most low risk option (for us) to not have any doubts about adjusting from the correct visa.

Also, there are several other VJ members who have adjusted from TN status hopefully they will read this thread....

Edited March 29, 2010 by Wishing

[Mestis 1]

Also, there are several other VJ members who have adjusted from TN status hopefully they will read this thread....

I adjusted from a TN...

However, I was not commuting each day between Canada and US... Actually, I first had a job in Florida.. Renewed my TN 2 times there. Then got a job in Chicago, renewed once... I haven't gone to Canada unless to renew my TN's.

I was super nervous because of the Dual intent. Hired a lawyer. But then, when I renewed my TN last, we did not even had a wedding date planned. Did not know we would get married then. We were engaged for 2 and a half years, been together for 5 1/2 at that point. And that way, I could continue to work.

However, like I said, other that renewing my TN, I did not cross the border. It is doable. It is to know if the risk due to the dual-intent is worth it or not

[bluberry 0]

Thank you for the responses. Below here is exactly what I signed on. I just signed that I read it and dated it. What does mean for me (bind me to)? I don't think this binds to anything but the acknowledgement of the law.

NAFTA TN Visa Law:

INA § 214 (e). Also codified as 8 U.S.C. § 1184 (e).

Admission of Nonimmigrants.

***

(e) United States-Canada Free-Trade Agreement

(1) Notwithstanding any other provision of this Act, an alien who is a citizen of Canada and seeks to enter the United States under and pursuant to the provisions of Annex 1502.1 (United States of America), Part C--Professionals, of the United States-Canada Free-Trade Agreement to engage in business activities at a professional level as provided for therein may be admitted for such purpose under regulations of the Attorney General promulgated after consultation with the Secretaries of State and Labor.

(2) An alien who is a citizen of Canada or Mexico, and the spouse and children of any such alien if accompanying or following to join such alien, who seeks to enter the United States under and pursuant to the provisions of Section D of Annex 1603 of the North American Free Trade Agreement (in this subsection referred to as ‘‘NAFTA’’) to engage in business activities at a professional level as provided for in such Annex, may be admitted for such purpose under regulations of the Attorney General promulgated after consultation with the Secretaries of State and Labor. For purposes of this Act, including the issuance of entry documents and the application of subsection (b), such alien shall be treated as if seeking classification, or classifiable, as a nonimmigrant under section 101(a)(15). The admission of an alien who is a citizen of Mexico shall be subject to paragraphs (3), (4), and (5). For purposes of this paragraph and paragraphs (3), (4), and (5), the term ‘‘citizen of Mexico’’ means ‘‘citizen’’ as defined in Annex 1608 of NAFTA.

(3) The Attorney General shall establish an annual numerical limit on admissions under paragraph (2) of aliens who are citizens of Mexico, as set forth in Appendix 1603.D.4 of Annex 1603 of the NAFTA. Subject to paragraph (4), the annual numerical limit:

(A) beginning with the second year that NAFTA is in force, may be increased in accordance with the provisions of paragraph 5(a) of Section D of such Annex, and

(B) shall cease to apply as provided for in paragraph 3 of such Appendix.

(4) The annual numerical limit referred to in paragraph (3) may be increased or shall cease to apply (other than by operation of paragraph 3 of such Appendix) only if--

(A) the President has obtained advice regarding the proposed action from the appropriate advisory committees established under section 135 of the Trade Act of 1974 (19 U.S.C. 2155);

(B) the President has submitted a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that sets forth--

(i) the action proposed to be taken and the reasons therefore, and

(ii) the advice obtained under subparagraph (A);

© a period of at least 60 calendar days that begins on the first day on which the President has met the requirements of subparagraphs (A) and (B) with respect to such action has expired; and

(D) the President has consulted with such committees regarding the proposed action during the period referred to in subparagraph ©.

(5) During the period that the provisions of Appendix 1603.D.4 of Annex 1603 of the NAFTA apply, the entry of an alien who is a citizen of Mexico under and pursuant to the provisions of Section D of Annex 1603 of NAFTA shall be subject to the attestation requirement of section 212(m), in the case of a registered nurse, or the application requirement of section 212(n), in the case of all other professions set out in Appendix 1603 of NAFTA, and the petition requirement of subsection ©, to the extent and in the manner prescribed in regulations promulgated by the Secretary of Labor, with respect to sections 212(m) and 212(n), and the Attorney General, with respect to subsection ©.

(6) In the case of an alien spouse admitted under section 101(a)(15)(E), who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘‘employment authorized’’ endorsement or other appropriate work permit.

PLEASE HELP

[warlord 72]

Ok I did this process from going from TN-Marriage to USC. I am not sure what form you signed when you crossed over last. But the way to go about doing the TN status to Marriage is this:

a) First reside in the US. Do not attempt to do this by living in Canada and commuting to the US.

b) Once in the US plan it so you have ample time on your TN status. This no longer should be an issue considering TN status's are now 3 years. Mine was yearly when I did it and those were the days timing was everything.

c) Get married (in the US)

d) File AOS right away

e) Honeymoon in the US

f) Wait for your AP and EAD card to show up. In the mean time do not travel outside the US and continue to work on the TN status until the EAD card comes.

g) Once the EAD card comes, you are no longer on the TN status and it is null and void. Use the EAD until you get your Green card.

That pretty much sums it all up. My process was fairly quick, though I had been living in the US for a good number of years before getting married but you can see my time line of what I went through.

As for that form you signed, I think it's basically saying you cannot persue a TN with the goal of getting married for Permenant Residency. You can however persue a TN and then luckily get enganged and married. Since you already disclosed to the officer that you are engaged, it means you are probably put on a special list. I would really suggest talking to a lawyer if you can. Though even getting married could easily solve the problem.

During the Green Card interview they have a sort of amnesty towards how you entered the US. So even if you did sign the form you easily could get pardoned at the Green Card interview by the officer...

[bluberry 0]

Thank you so much really for the super descriptive answer. I do have a few more questions if you don't mind.

The officer knew that I had been working in the US for sometime now and when I was renewing my TN he asked me if I was engaged (possibly bc he saw the ring I'm not really sure). He still issued the TN to me knowing that I am engaged to an American, he just made me sign that paper. I moved to the US and I won't be getting married for another 3-4 months.

1) Once I'm married I adjust my status right away??????? or should I wait a month or two to give me more time on the TN.

I thought there was a rule that once you enter the US on a TN, you can change your intentions after 60 days of residing here. i.e. meet someone and get married..is that true?????

2) When you file for AOS, they automatically send you AP and EAD???????(I don't plan on crossing back to Canada until I have the greencard so do I still need the Advanced parole????????

3) After I get my EAD and drop my TN, then I apply for a greencard???????

I really don't want to be deported or illegaly do anything.

THanks again guys I realllllly appreciate this, I have been scared and feeling really uneasy about all of this...so stressful.

[Mestis 1]

Thank you so much really for the super descriptive answer. I do have a few more questions if you don't mind.

The officer knew that I had been working in the US for sometime now and when I was renewing my TN he asked me if I was engaged (possibly bc he saw the ring I'm not really sure). He still issued the TN to me knowing that I am engaged to an American, he just made me sign that paper. I moved to the US and I won't be getting married for another 3-4 months.

1) Once I'm married I adjust my status right away??????? or should I wait a month or two to give me more time on the TN.

I thought there was a rule that once you enter the US on a TN, you can change your intentions after 60 days of residing here. i.e. meet someone and get married..is that true?????

You can adjust your status right away. But I would not get married the day after you cross the border for the last time... I would wait 60 days (but them, I'm not a lawyer)

2) When you file for AOS, they automatically send you AP and EAD???????(I don't plan on crossing back to Canada until I have the greencard so do I still need the Advanced parole????????

You need to file the correct form for it. But if you pay the fees for the AOS, you do not have to pay additional fees for them. Since they are free, I would request them

3) After I get my EAD and drop my TN, then I apply for a greencard???????

No. The EAD is part of the greencard process. You apply to everything at the same time. Just need to file the correct forms

I really don't want to be deported or illegaly do anything.

THanks again guys I realllllly appreciate this, I have been scared and feeling really uneasy about all of this...so stressful.

It is stressful. That is why I hired a lawyer when I did this. And I am glad I did, but it is a personal choice since it can certainly be done without. The main issue in your case (and in most TN case I would say) is the intent, since TN do not allow a dual intent. Were you planing to get married last time you entered in the US? I agree with some people here, in most case, they do not ask (they did not in my case, but I knew that we decided to get married after the last renewal, even if we were engaged for over 2 years). However, it is up to you to see and know if this was your intent, and if they ask, how would you awnser to that. Because if they ask, the burden is on you to prove it. And it is up to you to decide if you should take that risk or not.

Edited March 30, 2010 by Mestis

[Spoom 8]

At this point, attempting to adjust from a TN visa to LPR status based on marriage would likely be considered fraud, since:

I got engaged recently and moved to the US to be closer to work and plan the wedding.

The fact that you're already planning the wedding means that you had intent to immigrate at least the last time you entered. There's a very high chance that's how USCIS will see it, especially with you signing something when you last crossed.

Sure, you could get through. But personally, I'd return and file the I-130 abroad if you can, since if you adjust in country, there's always the chance that someone will later look more closely at it (like at naturalization)... and green cards can be revoked (not to mention your current TN status). Read the warning at the top of the in-country I-130 guide and if you still feel you want to try the in-country method, the rest.

By the way, you're referring to the 30/60/90 rule, which is the idea that if AOS is attempted on a tourist (or other nonimmigrant) visa within 30 days of entering the country, fraud is presumed and the Adjustment is denied; between 30 and 60 fraud is presumed but can be rebutted with evidence; between 60 and 90 they assume no fraud unless evidence of fraud already exists (which it might for you due to that document you signed); and after 90 days they don't assume any fraud. Whether or not consular officials actually still use this, I don't know.

[warlord 72]

At this point, attempting to adjust from a TN visa to LPR status based on marriage would likely be considered fraud, since:

The fact that you're already planning the wedding means that you had intent to immigrate at least the last time you entered. There's a very high chance that's how USCIS will see it, especially with you signing something when you last crossed.

Sure, you could get through. But personally, I'd return and file the I-130 abroad if you can, since if you adjust in country, there's always the chance that someone will later look more closely at it (like at naturalization)... and green cards can be revoked (not to mention your current TN status). Read the warning at the top of the in-country I-130 guide and if you still feel you want to try the in-country method, the rest.

By the way, you're referring to the 30/60/90 rule, which is the idea that if AOS is attempted on a tourist (or other nonimmigrant) visa within 30 days of entering the country, fraud is presumed and the Adjustment is denied; between 30 and 60 fraud is presumed but can be rebutted with evidence; between 60 and 90 they assume no fraud unless evidence of fraud already exists (which it might for you due to that document you signed); and after 90 days they don't assume any fraud. Whether or not consular officials actually still use this, I don't know.

This is why I might talk to a lawyer, but since the officer let you in there's really nothing now that should prevent you from getting married. Normally the IO would probably deny you with the engagement. But you did come clean and didn't hide it so that could have played a part in him letting you through. Because of that, there's really nothing that should be able to stop you, though I had never heard of those letters before so I would definatly in your case seek out a lawyer and just see what exactly that is.

1) Once I'm married I adjust my status right away??????? or should I wait a month or two to give me more time on the TN.

I thought there was a rule that once you enter the US on a TN, you can change your intentions after 60 days of residing here. i.e. meet someone and get married..is that true?????

You should always adjust it as soon as possible, why wait when you can get a good jump on filing it. You do not want to be there if your TN status expires as you no longer will be able to apply for a new TN.

There is no rule about 60 days at all. TN status is meant for temporary non-immigrant status only. If you are in the US legally (which you were just recently re-admitted into the US with a TN status) then there is no time limit for when you can or can't get married. If you had been on the TN soley for the purpose of getting married then that would be a different case, but since it seems apparent you were already on the TN status when you met your finace, then that is fine.

2) When you file for AOS, they automatically send you AP and EAD???????(I don't plan on crossing back to Canada until I have the greencard so do I still need the Advanced parole????????

You do not automatically get sent anything. They review your AOS application and then make a decision if it passes. They then will send an AOS and a EAD to you regardless if you need them or not. This is part of the AOS package. I never used my AP at all, but I had it sent to me. Time lines can vary, some people like me it's short, other people have waited well over 6 months to recieve these. Another reason why you want to send out for AOS immediatly after your marriage. Timing is everything, though you still will be able to work on your TN, if it expires and you haven't got the EAD, you will not be able to work.

3) After I get my EAD and drop my TN, then I apply for a greencard???????

You don't drop the TN. The TN just becomes invalid and you can toss it away. You will get an interview set up for the Greencard after the EAD/AP. This is set up as part of the AOS if I remember and you do not have to file for that sepearatly. This will be a temporary Green Card that will be good for 2-3 years (can't remember anymore). After that you will have to then manually file another form to remove the conditions of that Green Card to get the normal 10 year Green Card.

Also remember you will want to remain living in the US during this time to risk abandonment of the Green Card if you live outside the US for extended amounts of time. Only if you decide to become a US citizen would you be able to then move to Canada or wherever you want...

[bluberry 0]

This is the document I signed 2 months ago and dated...I crossed the border after that on a daily basis for 2 months and then moved...It is basically the regulations of this type of VISA...I'm not sure if I'm flagged or not because the Officer still issued the TN visa w that knowledge and I crossed for 2 months without any problems...I'm just scared after reading some of the comments...But it does make sense that if they had a problem with me the first time, he wouldn;t have issued the TN to me in the first place...I'm still working under it and have been doing so for 2.5 years. You guys still think there is a big risk involved????

THanks again

NAFTA TN Visa Regulations. 8 CFR § 214.6.

Canadian and Mexican citizens seeking temporary entry to engage in business activities at a professional level.

(a) General. Under section 214(e) of the Act, a citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level may be admitted to the United States in accordance with the North American Free Trade Agreement (NAFTA).

(b) Definitions. As used in this section, the terms:

Business activities at a professional level means those undertakings which require that, for successful completion, the individual has a least a baccalaureate degree or appropriate credentials demonstrating status as a professional in a profession set forth in Appendix 1603.D.1 of the NAFTA.

Business person, as defined in the NAFTA, means a citizen of Canada or Mexico who is engaged in the trade of goods, the provision of services, or the conduct of investment activities.

Engage in business activities at a professional level means the performance of prearranged business activities for a United States entity, including an individual. It does not authorize the establishment of a business or practice in the United States in which the professional will be, in substance, self-employed. A professional will be deemed to be self-employed if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner.

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien’s entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.

[Hugglebuggles 60]

So, basically you just signed a piece of paper acknowledging that you understand the rules and regulations of the visa? That's what it look like to me. I really don't think this will cause you a problem at all. The only reference it gives to perusing permanent residency is reference to satisfying the immigration officer that is not your intention. If they approved you TN and let you back into the US, obviously you have satisfied them.

AOS from anything but a family based visa always has a certain level of risk. There have been people who successfully adjusted from TN's in the past, and I don't really see any extraordinary circumstances that makes your case much different. With that said, I still think consulting with an immigration attorney would be a good idea.

[bluberry 0]

Yep I just acknowledged the law section 214.6 and I would only apply for a AOS after I get married, it would be only through the marriage relationship, which would hopefully remove the risk involved....

[bluberry 0]

One last question, you guys have all been so helpful and I really appreciate it...

Can we say the best method of persuing is this...Can you guys agree????

Remain in states a minimum of 90 before getting married (and continuing to work on my TN)

After marriage, apply for EAD and AP (and continuing to work at my job except with a different status now)

Someone mentioned a CR-1 I dont even know what that is and since I've already moved here and don't plan on commuting back to Canada for a long time, would this method still be good????

My main is that I really want to keep my job because I love what I do and i'm on the right track to advance my career and at the same time I want to get married and live here...without any problems...(seems so easy to say but they make it kina hard for us)

Again, thank you for everything you guys!