Specific rules regarding working on TN while I-765 is being processed?

[bhinny 0]

Hello,

New to the board but have been reading through posts for a while now. Lots of good info here and I've read through some posts of people who have applied under the circumstances I'll describe below. My concern is avoiding any issues in the application process. I am hoping to get some more specific information on this particular issue.

My fiance is on a TN visa, she is a Chinese national who became a Canadian citizen. She went to grad school for 3 years in Canada and worked in Canada for a short time prior to finding a job in the U.S. She has worked in the U.S. on the TN work permit for 5 years now, having it renewed a couple times. Her TN is up at the end of Feb. next year(2/28/12). We'd like to get married very soon and are unclear as to the specific rules regarding her continued working after applying for AOS.

We consulted one Immigration attorney who suggested that she take a leave of absence the day before we file our I-130, I485, and I-765. He said she should not return to work until after getting her I-765 approval. We were told to continue working on the TN after filing is a bit of a "gray area" and some people continue working and have no issues but to be safe she should take a leave of absence. He is willing to help us with the application process even if she continues working, he just said his advice is for her to take a leave of absence.

My fiance would like to continue working if at all possible but at the same time we don't want to cause ourselves any issues. We're not sure if our workplace (we work at the same company) will even allow her to take a leave of absence for 3 or more months. We've both read about a lot of instances where people have no issues to continue working on a TN work permit while applying for AOS. A couple of attorneys also told us this wouldn't be an issue. This has left us a little confused as to how we should proceed...

We know it can potentially take longer than 3 months to get an I-765 approved in which case she'll have to take a leave of absence once her TN is up. We'd just like if she could continue working and keep her job through this process.

I wanted to get some feedback from the knowledgeable group here. Is there a hard rule about this? Has anyone had or heard of issues/problems when someone continues to work on a TN after applying for AOS?

Any advice and/or suggestions are welcome.

[Mestis 1]

I'll share with you my story, so it might help.

I have been working on a TN for about 5 years, and I had it renewed on Aug 1st, 2009. After that, my then fiance and me decided it would be a good timing to get married, considering couple of factors. We did organize the wedding in 6 weeks and go married on September 2009 with my parents and my best friend from Montreal coming down. We filled for AOS in November. I did continue to work on my TN. My lawyer mentioned it was no issue since I was adjusting status. I could keep my actual legal status until I would get the new one (LPR). I got my EAD on January 14th and I got approved during our interview on February 3rd, 2010 (my husband birthday). My TN status/work has never been discussed, only as how I got into the country in the first place.

However, things at my company were rocky and I did not know if I would keep my job or not. My lawyer mentioned that once the AOS was sent, I was allowed to stay in the country even if I would lose my job and my TN status expires the day you loose your job. However, if I was offered another TN position, I could not renew my TN as I was already in a immigration process and TN does not allow for dual intend. Also, he strongly suggest not to leave the country even with AP as the TN status can be reexamined as you cross the border.

This was my situation 2 years ago and what happened. Hopefully it helps.

[Mestis 1]

I'll share with you my story, so it might help.

I have been working on a TN for about 5 years, and I had it renewed on Aug 1st, 2009. After that, my then fiance and me decided it would be a good timing to get married, considering couple of factors. We did organize the wedding in 6 weeks and go married on September 2009 with my parents and my best friend from Montreal coming down. We filled for AOS in November. I did continue to work on my TN. My lawyer mentioned it was no issue since I was adjusting status. I could keep my actual legal status until I would get the new one (LPR). I got my EAD on January 14th and I got approved during our interview on February 3rd, 2010 (my husband birthday). My TN status/work has never been discussed, only as how I got into the country in the first place.

However, things at my company were rocky and I did not know if I would keep my job or not. My lawyer mentioned that once the AOS was sent, I was allowed to stay in the country even if I would lose my job and my TN status expires the day you loose your job. However, if I was offered another TN position, I could not renew my TN as I was already in a immigration process and TN does not allow for dual intend. Also, he strongly suggest not to leave the country even with AP as the TN status can be reexamined as you cross the border.

This was my situation 2 years ago and what happened. Hopefully it helps.

Argh.. since I can't edit...

Ok, here is my opinion.... I'm no lawyer, but I had to go through this when I took the decision for myself, so my train of though might help. If other members could pitch in for the logic, I'll appreciate as well.

Actually, I would say she can't stop working before applying to the AOS..I mean, it's not like she's working illegally or something. The minute she leave her job, her TN status is void so she would be out of status until she leave the country or change her status to something else. She would have to apply for a adjustment of status from a TN to a B1 or B2, or go out and in of the country. I think it would be a lot worse to justify intent on a B1 or B2 than on a TN. On the application, she still need to say from which status she is applying from. At this point, TN is no worse than B1 (tourist) or B2 (business). That she stops working or not does not change that. Ask to your lawyer from which status she would adjust from if she would quit her job....

If you really want to take the safest route, you would have to file for a CR-1 or a K-1. It automatically shows no intent to immigrate as you HAVE to return in your country to do the interview. She could continue to work on a TN in the mean time. But even then, she has been working on a TN for 5 years, so at a point, they will start to ask questions as well.

Edited November 18, 2011 by Mestis

[ceadsearc 516]

Don't know the answer. But if you filed at the beginning of November you will almost certainly get the EAD by 2/28.