Marriaged-based transition to GC from TN (NAFTA)

[wbmason 0]

I am in desperate need to second, third, and fourth opinions about a special case I came across.

The applicant is a Canadian citizen who will soon marry a US citizen in 2 months' time (May).

Currently, the applicant holds TN status and works for a US-based employer in the US; this is the non-immigrant NAFTA visa. However, his TN will expire in 3 months' time (late June).

The applicant has post-wedding travel plans with his American wife, which will bring them out of the United States. They will re-enter the US in mid-June. For him, the re-entry will be about 2 weeks prior to the TN expiration date.

Question 1: Assuming the applicant's employer does not file an extension (renew) to the TN visa, what should be say or be aware of when he re-enters the US from his traveling?

Now, assuming the applicant re-enters the US successfully, he will have to wait at least 60 days before he can send in his AOS application to USCIS. Counting the date of re-entry as 1, 60 days' worth of wait will take the applicant to mid-August.

However, due to the expiration of the aforementioned TN in late June, the applicant will inevitably fall out of status from late June to mid-August, essentially at some point during the 60-day waiting period.

Question 2: How significant is the risk of deportation during this period when the applicant is out of status?

Question 3: How does this period of being out of status affect the applicant's subsequent AOS application?

Question 4: Is there any other way of remedying this situation, considering the circumstances?

Thanks!

[Bobby+Umit 161]

I am in desperate need to second, third, and fourth opinions about a special case I came across.

The applicant is a Canadian citizen who will soon marry a US citizen in 2 months' time (May).

Is the applicant in the US now?

Currently, the applicant holds TN status and works for a US-based employer in the US; this is the non-immigrant NAFTA visa. However, his TN will expire in 3 months' time (late June).

The applicant has post-wedding travel plans with his American wife, which will bring them out of the United States. They will re-enter the US in mid-June. For him, the re-entry will be about 2 weeks prior to the TN expiration date.

Not a good idea - as outlined below.

Question 1: Assuming the applicant's employer does not file an extension (renew) to the TN visa, what should be say or be aware of when he re-enters the US from his traveling?

Only 2 weeks on the visa may cause him not to be able to enter - not sure on the specifics of this though.

Now, assuming the applicant re-enters the US successfully, he will have to wait at least 60 days before he can send in his AOS application to USCIS. Counting the date of re-entry as 1, 60 days' worth of wait will take the applicant to mid-August.

Why do you think you have to wait 60 days?

However, due to the expiration of the aforementioned TN in late June, the applicant will inevitably fall out of status from late June to mid-August, essentially at some point during the 60-day waiting period.

Question 2: How significant is the risk of deportation during this period when the applicant is out of status?

Without the NOA from the AOS, he is always at risk for issues with ICE. Closer to the border, more likely.

Question 3: How does this period of being out of status affect the applicant's subsequent AOS application?

If married to an USC, not much.

Question 4: Is there any other way of remedying this situation, considering the circumstances?

Yes, he should AOS as soon as he is married, get the AP, then go travel outside the US - it appears you are trying to get around immigration control by getting married, leaving on vacation (from the US), coming back on a different visa (T-1), then do the AOS, that could cause you issues if it becomes a problem. (like misrepresenting yourselves at the border for one. Will this applicant tell them he is now married to an USC when he attempts re-entry?)

Thanks!

[wbmason 0]

@Bobby+Umit, thanks for your input. Here's some clarification:

-- Applicant is indeed currently residing in the US. He received and completed his undergraduate education in the US and has the original diploma to show for it.

-- The "60-day waiting" was the interpretation provided. The reason is as follows:

a) The applicant is re-entering the US after his travel plans on the TN visa (non-immigrant intent) although there would only be 2 more weeks left until expiration.

b) If the applicant submits the AOS application having just re-entered into the US, this would be deemed as a visa fraud. AOS clearly demonstrates the intention to immigrant; this is contrary to the applicant's stated intention as he re-enters the US using his TN status. The AOS application coiuld then be subsequently jeopardized.

-- You mentioned that even if the applicant falls out of status (i.e. TN expires), the fact that his spouse is a US citizen should not jeopardize favorable adjudication of the applicant's AOS application. Can you provide more assurances and/or information on this notion?

-- To clarify Question 4: The applicant's travel constitutes as vacation from his employment, so it would make sense that he'll re-enter using his TN and "finish up the work" for his final 2 weeks leading into the TN expiration date in late June.

It's not to pull a fast one over CBP officers. Would it be appropriate to recommend the applicant to avoid mentioning his marriage when re-entering the US, and instead provide an explanation (if asked) about his vacation?

[wbmason 0]

EDIT (additions):

ALSO, I am forced to conclude that there is insufficient time for the applicant to send in AOS now. He is still awaiting the final report from the Civil Surgeon. Even if we manage to have the applicant be married in the next day or two and FedEx the completed AOS package to the Vermont USCIS Processing Center by Monday, April 5, there remains a very high chance of the applicant not receiving his AP in time to embark on his travel plans in late May.

His travels cannot be avoided at this time due to extenuating circumstances. So even if we get AOS sent out, the applicant will most definitely be denied re-entry without the AP. I believe he will have better chances re-entering with his TN.

Thoughts?

@Bobby+Umit, thanks for your input. Here's some clarification:

-- Applicant is indeed currently residing in the US. He received and completed his undergraduate education in the US and has the original diploma to show for it.

-- The "60-day waiting" was the interpretation provided. The reason is as follows:

a) The applicant is re-entering the US after his travel plans on the TN visa (non-immigrant intent) although there would only be 2 more weeks left until expiration.

b) If the applicant submits the AOS application having just re-entered into the US, this would be deemed as a visa fraud. AOS clearly demonstrates the intention to immigrant; this is contrary to the applicant's stated intention as he re-enters the US using his TN status. The AOS application coiuld then be subsequently jeopardized.

-- You mentioned that even if the applicant falls out of status (i.e. TN expires), the fact that his spouse is a US citizen should not jeopardize favorable adjudication of the applicant's AOS application. Can you provide more assurances and/or information on this notion?

-- To clarify Question 4: The applicant's travel constitutes as vacation from his employment, so it would make sense that he'll re-enter using his TN and "finish up the work" for his final 2 weeks leading into the TN expiration date in late June.

It's not to pull a fast one over CBP officers. Would it be appropriate to recommend the applicant to avoid mentioning his marriage when re-entering the US, and instead provide an explanation (if asked) about his vacation?

[AOS2IL 0]

1.)if you are going to marry and apply for AOS then do not leave the country, do not apply for TN again.

2.)overstay should be ok for AOS

[Bobby+Umit 161]

EDIT (additions):

ALSO, I am forced to conclude that there is insufficient time for the applicant to send in AOS now. He is still awaiting the final report from the Civil Surgeon. Even if we manage to have the applicant be married in the next day or two and FedEx the completed AOS package to the Vermont USCIS Processing Center by Monday, April 5, there remains a very high chance of the applicant not receiving his AP in time to embark on his travel plans in late May.

His travels cannot be avoided at this time due to extenuating circumstances. So even if we get AOS sent out, the applicant will most definitely be denied re-entry without the AP. I believe he will have better chances re-entering with his TN.

Thoughts?

Sounds to risky to me - you know your coming back to AOS on the TN visa. If I were you, I would not do it. I would AOS now, forgo the vacation plans, get the AP, then go on the vacation.

Better be safe than sorry - the choice is up to you.

I see you are talking about the 30/60/90 rule - there is no such rule. That is what lawyers think - but there is nothing in the instructions from USCIS concerning this. You could be here for 1000 days and they can still deny you.

Personally, if you are thinking of this rule prior to coming, then you are, imo, planning on getting around the proper visa procedure, which can lead to denial if they think the same thing. The burden of proof is on you, not USCIS.

About the overstay being overlooked, do a search on my user name for posts concerning overstay - plenty of examples - - also, there are case law guiding this (I cite the particulars). As long as you have no other "adverse factors" that would prevent you from AOS, you will not have an issue with it. (major "adverse factor" is misrepresentation)