Filing AOS... TN expiring... overstay concerns?

[ezgrower 1]

Hi Everyone,

First thanks to everyone on this forum for your generosity in sharing your experience and advice!

I've been working in the United States for many years under a number of TN visas, and as fate would have it, I met someone very special! We were married last year, but through ignorance, distraction, and any number of other inadequate excuses, I am only now submitting (on Monday, after I pick up my I-693) my complete AOS package. The past weeks have been quite a ride, and with 20-20 hindsight, I wish we had done this months ago, but here we are...

Here is my concern: my TN expires on November 22, and I am worried about becoming "out of status", and what implications this could have on this whole process. I intend to express the package to the Chicago lockbox with tracking, so I'll have documentation of when the package arrived there (that should be before the expiration of my TN), but I very much doubt that I will receive any notification that they have accepted my package before TN expiration. And there is always the possibility that something is wrong and my package will be returned to me without being accepted for evaluation. At what time can I feel confident that I am "legal" staying in the U.S. beyond the expiry date of my TN? Is it once I have proof that my AOS package was delivered by the USPS or UPS, or am I "out of status" and illegally present in the U.S. if my application is accepted after TN expiry date, or if they return an incomplete package? Given that it is highly unlikely that my application will be accepted before my TN expires, I'm wondering if this is going to cause me grief, and it would be better to leave for Canada when my TN expires and work on application from there...

Please share any knowledge, experience, or advice!

[Krikit 1,165]

Hi there, and welcome to VJ.

Here are a couple of related threads to get you started:

http://www.visajourney.com/forums/topic/304759-attorney-recomendations-for-tn-to-greencard-via-aos/

http://www.visajourney.com/forums/topic/317122-beginning-steps/

[ezgrower 1]

Thanks for the welcome, Krikit... wish we had found this forum earlier. What a great bunch of folks here!

I've read the two threads you pointed me too, and I've been busy searching through other posts. We realize that it's going to be a bit of a wait before getting an EAD, and we're prepared to have me unemployed while we wait. Our big worry is about having an overstay if the AOS application is accepted or if gets returned for some reason after my TN ends. The application will be delivered to USCIS before my TN expires, but it seems unlikely that they will ACCEPT it before then.

[Krikit 1,165]

I've pinged Warlord. Hopefully he can help out with your questions.

Two things to make note of: Unauthorized employment is "forgiven" at the interview stage. Second, there will be no overstay as Canadians are unique in that they aren't found to be in overstay status until an immigration judge has given a ruling. However, you should not leave the US until you have received Advance Parole as you will be considered to have abandoned your adjustment status and they will not allow you re-entry without it.

[ezgrower 1]

Thanks, Krikit. That gives us some reassurance! Hopefully sleep better tonight

[Harpa Timsah 13,258]

Overstay is irrelevant/forgiven for spouses of US Citizens who adjust in-country, so there is nothing to be worried about in that regard.

[ezgrower 1]

Thanks for the feedback - again, very reassuring for us. As a follow-up, does that mean I should avoid requesting/using an Advance Parole to travel briefly to Canada?

[Harpa Timsah 13,258]

You can request an AP. Once your package is accepted for initial review, you will begin a new period of authorized stay and the overstay clock stops. It sounds like you will have zero overstay days, or maybe just a few, and it won't make a difference. It will only make a difference if you overstay 180 days between when your status expires and your AOS package is accepted. The AP takes about 3 months to be approved, though.

[ezgrower 1]

Hmmm... Just discovered a new "problem"...

I first came to the U.S. while I was a grad student at McGill University, Montreal, way back in 1988. I really admired the work of a professor at Ohio State, and after a number of meetings and conversations, he agreed to be a co-advisor for my McGill dissertation and host me in Ohio for much of my research. Between May 1988 and April 1992, I was admitted to the U.S. under three J-1 visas as a visiting student/scientist, and I received a 5-month extension on the final J-1. All of the IAP-66 forms show the program sponsor NOT providing financial support and NOT receiving "funding for international exchange from one or more U.S. Government Agency(ies) to support this exchange visitor." However, for the first J-1, the IAP-66 indicates I received ~$4k from the exchange visitors government (actually, a scholarship I won, not having anything to do with a formal exchange program, although this probably doesn't matter). For the final J-1 extension, the IAP indicates I received $3k support from the U.S.D.A. An explanation that exchange visitors may be subject to Two-Year Home Country Physical Residence Requirement appears on the back of the IAP-66. Although nothing on any of the IAP-66 forms states explicitly that I am subject to 2-yr HRR, I suspect that I am. However, since these J-1 visa stays, I've been repeatedly employed, first in Ohio and subsequently in Illinois, under TN status, and I haven't resided in Canada for anywhere close to 2 years.

So, I thinking maybe I should put my AOS package on hold and first get a J-1 HRR waiver... 1) Request No Objection Statement from home country, 2) Apply for NOS-based waiver of J-1 HRR, and then 3) Submit in-country AOS. If I do all this while staying in the U.S., I will be overstaying my TN by much longer than a few days (but I would NOT work). However, I would think that I can get my AOS submitted--along with my U.S. citizen spouse's sponsorship--before 180 days of overstay have accumulated. I don't think getting the NOS will be a problem (no exchange visitor skills list for Canada, and my scholarship was not connected to any formal exchange program... any experience with Canada, anyone?). Does this seem like a reasonable and advisable strategy? Any potential problems or concerns that I'm overlooking?

Thanks for all the advice and reassurances so far!

[Hypnos 6,578]

From what you have described it sounds as though you may well be subject to the 2 year home residency requirement. If you file for AoS without either (1) obtaining a waiver, or (2) being able to show that you were in Canada for two years, then your AoS will be denied if you are subject to it.

If you are uncertain as to whether you are subject to the rule, you can request an advisory opinion from the Department of State who will review your documents and give you a yes or no: http://travel.state..../info_5502.html. This might be worth pursuing first, since there is some ambiguity from your description. It usually takes 4 - 6 weeks for DoS to issue an opinion, and if they say no then you can just file for AoS in the normal way. If they say yes then you will need to seek a waiver: http://travel.state..../info_1288.html

Edited November 19, 2012 by Hypnos

[Krikit 1,165]

What do the stamps on your passport say?

[warlord 73]

I've pinged Warlord. Hopefully he can help out with your questions.

Two things to make note of: Unauthorized employment is "forgiven" at the interview stage. Second, there will be no overstay as Canadians are unique in that they aren't found to be in overstay status until an immigration judge has given a ruling. However, you should not leave the US until you have received Advance Parole as you will be considered to have abandoned your adjustment status and they will not allow you re-entry without it.

Yes you will be out of status once your TN status is done. This is why going from TN status to GC via marriage is all about timing. With the now 3 year TN status duration (compared to only 1 year of a TN status previously) it makes it much easier to make that transition between TN status and AOS.

However, as Krikit said, you cannot leave the country for any reason until the AP portion of the AOS is in your hand. You are unable to work until you receive the EAD part of the AOS. This can take a month or many months depending on a million factors. So it's impossible to say when you'll have that EAD in your hand. Generally though it's just a luck of the draw with how long it takes for the AP and EAD to arrive. In my instance, I got both the EAD and AP in a month of applying for example. Of course during this time, you will not be able to work. As for your job, they may just allow you to take an unpaid time of leave until that EAD arrives, if not, then that's the problem with waiting like you did and you could find yourself out of work.

Yes they do forgive a lot at the interview, even illegal entry into the US to marry. The issue isn't the working as unauthorized status, but the fact many and most companies will not put themselves at risk for doing so as fines can be heavy if found out. So they may not want to take that risk on you as they after all will be the ones that will have to pay if discovered having an undocumented worker...

[ezgrower 1]

Thanks, all, for the feedback. Since last night, I've established that I am NOT subject to the 2-yr HRR, so I'm good on that front. I also got my call from an immigration lawyer returned, and he assured me that the overstay, in itself, is unlikely to cause serious issues in my circumstances. So, the plan is to next-day post the AOS today or first thing tomorrow morning (have to race to drive 3hrs to Chicago to pick up my medical exam report), including the EAD and AP. On the job front, my current employment ends on Thursday anyways, and it is not an issue for us to wait months until GC or EAD are issued. Plenty to do around the house!

Once we're done the racing around over the next day or so, we'll post with a full accounting of our journey (and hopefully no more issues). Thanks, everyone, for your sharing your information and advice - you are saints!

[warlord 73]

Forget the J waiver. You have applied for AOS which now negates any visas (like the J-1) or any status's like the TN (even though you can still work on a TN status until it finally expires), kind of weird rules they have.

So with that as mentioned, you will be given leniency at the interview if you remain in the US. The only things you can't do is a) work and b) leave the country for any reason. This is all until you get the EAD for your work and the AP document for travel outside the US.

Leaving now before having the AP, you would be stuck on the other side of the border for who knows how long and it could become a nightmare of processes to get you back. So under no circumstances should you leave without the AP document.

So right now, you just need to wait it out. Usually EAD/AP doesn't take that long (may have changed), both documents in my case came in less than a month after I submitted my AOS...