Working during AOS from TN

[jubbadubba 0]

Hi All,

Thanks for the amazing resource you've built here. It has provided me and my partner enormous clarity to the process of immigrating.

I have read several threads about the process of applying for AOS while on a TN visa for a Canadian citizen-- sorry if this is trodding familiar ground, but I need a little more clarity on one issue:

Must one continue/not continue to work at the TN-sponsor employer through some part the AOS process? Specifically, between filing AOS and receiving EAD?

Our situation is thus:

1. Canadian on TN visa which is good for another 1.5 years.

2. Has been residing in USA for 5 years all on valid statuses, no overstays.

3. Marrying a USA citizen mid-June 2016

4. Moving to a different USA city July 1 2016, and possibly away from current TN employer.

5. Not leaving the USA for at least 6 months after initial filing for AOS

This sponsor-employer may or may not be able to continue to offer employment once we move. So, my partner would be not working and essentially just waiting for the EAD. Is this OK? If the same employer does offer work during the AOS process, is it OK for my partner to work there before receiving EAD? What can and can't we do with work one we have declared intention for that adjustment of status, provided that we stay in the USA?

Thank you!

[jubbadubba 0]

quick follow-up question:

Does the 30/60 rule for waiting after a TN to file for AOS still good advice for *any* reentry to the USA, or just for the initial entry in which the TN was issued?

TN was issued 1.5 years ago, but right now we'd like to travel to Canada for a week--since once we start AOS we won't be able to leave for a while--and file AOS just after returning. Is this legit?

[Teddy B 17,252]

I have seen conflicting reports of whether or not the TN remains valid during the AOS process.

Your questions might be better served if this was moved to the Canada section, there might be other folks there who have been through this. You can hit the report button and ask the mods to move it.

[jubbadubba 0]

Thanks, I reported.

I understand the conflicting reports over whether it remains valid-- the consensus seems to be that the TN is still provisionally valid assuming you don't

1. leave the country and reenter
2. file an I9 with another employer after getting EAD
3. have your AOS fully adjudicated

That is half my question-- and it seems to suggest that once you file for AOS, you could also be NOT working until EAD since you are in AOS-pending status. But I haven't read that explicitly anywhere. There's also possibly the situation that not working amounts to an overstay which is forgiven under consideration of AOS, but I haven't heard that either.

[Teddy B 17,252]

Thanks, I reported.

I understand the conflicting reports over whether it remains valid-- the consensus seems to be that the TN is still provisionally valid assuming you don't

1. leave the country and reenter

2. file an I9 with another employer after getting EAD

3. have your AOS fully adjudicated

That is half my question-- and it seems to suggest that once you file for AOS, you could also be NOT working until EAD since you are in AOS-pending status. But I haven't read that explicitly anywhere. There's also possibly the situation that not working amounts to an overstay which is forgiven under consideration of AOS, but I haven't heard that either.

The part in bold is what I have seen conflicting reprts on. The issue is whether or not the AOS overrides the TN. I'm not sure. The last part about the overstay shouldn't be an issue, because any overstay is forgiven with marriage to a USC.

[Teddy B 17,252]

I did find this on a search which seems to reinforce your thoughts about being okay as long as you don't leave the country.

A TN visa is not a dual intent visa, meaning that applying for permanent resident status can cause issues when traveling outside of the United States or seeking an extension of your TN visa. A pending application for permanent residence can be the basis of an initial denial of TN status. In this respect TN status is unlike H-1B status,wherethe alien may have dual intent without an adverse effect to the alien's non-immigrant or immigrant petition. However, a pending or approved employment based immigrant petition (Form I-140) or family based immigration petition (I-130) does NOT impute immigrant intent. The TN alien is eligible for TN extensions & to be admitted as a TN alien until the adjustment of status application (Form I-485) is filed or the applicant applies for the immigrant visa.

While other types of status holders (such as H-1, L-1 or O-1) may apply for Adjustment of Status (AOS) as soon as they wish once entering the country, those of TN status have at least a 30 to 60 day waiting period upon entering the United States before they may apply for AOS. Any applications before this waiting period is over will be considered an attempt to gain fraudulent entry by the USCIS. Additionally, the U.S. consulate may deny a TN visa application if the alien has previous applied for an immigration petition or AOS. Those on TN status who wish to file an I-140 immigration petition should not travel outside of the country because they will encounter issues upon their re-entry. If an alien on TN status has an approved I-140 petition and is currently waiting on their AOS petition to be approved, they must be sure to apply for Advanced Parole to travel outside of the country. For more information on AOS, please click Adjustment of Status. - See more at: http://www.hooyou.co...h.Xal4vOlU.dpuf

http://www.hooyou.com/tn/limitations.html

[jubbadubba 0]

Thanks, OK.

Re: overstay. Does that mean regardless of AOS or TN overruling, someone on a TN could simply stop working (commencing an overstay) and then file for AOS?

and the two scenarios are either that

(1) AOS is granted and overstay is forgiven, or

(2) AOS is denied and your TN is no longer good anyway because you've demonstrated intent to immigrate.

[newacct 688]

There is no such thing as "AOS-pending status". You either have a specific nonimmigrant status (like TN) or no status. Applying for AOS doesn't affect your status. You remain in TN status as long as its I-94 is not expired and you have not violated the terms of your TN status (like quitting your job, or taking up another outside job).

[jubbadubba 0]

OK, but I've heard

"After that (your non-immigrant status expiring) if you do not renew (your non-immigrant status), it will automatically change to I-485 pending status."

Did someone make that up?

[newacct 688]

Thanks, OK.

Re: overstay. Does that mean regardless of AOS or TN overruling, someone on a TN could simply stop working (commencing an overstay) and then file for AOS?

Regardless of your category, you can simply quit working while AOS is pending. If you are in the Immediate Relative category (spouse, under-21 child, or parent of US citizen), you can also quit working before filing for AOS (Is that what you're asking about?); all other categories must be in status at the time of filing AOS.

[Teddy B 17,252]

There is no such thing as "AOS-pending status". You either have a specific nonimmigrant status (like TN) or no status. Applying for AOS doesn't affect your status. You remain in TN status as long as its I-94 is not expired and you have not violated the terms of your TN status (like quitting your job, or taking up another outside job).

While there is no actual status, there is a big difference between being in an overstay with no AOS pending and being in an overstay with AOS pending. It is considered to be a protected "status" (for lack of a better word).

[newacct 688]

OK, but I've heard

"After that (your non-immigrant status expiring) if you do not renew (your non-immigrant status), it will automatically change to I-485 pending status."

Did someone make that up?

When you have I-485 pending, you are allowed to stay in the US regardless of whether you have status or not. Some people describe the situation where you have I-485 pending and no status as "AOS status" or something like that as a layman's description, but it's not actually a "status".

[jubbadubba 0]

When you have I-485 pending, you are allowed to stay in the US regardless of whether you have status or not. Some people describe the situation where you have I-485 pending and no status as "AOS status" or something like that as a layman's description, but it's not actually a "status".

GOTCHA. thanks for the clarification.

One more thing: is that 30/60 suspicion rule-of-thumb applicable to re-entries on a TN, or just first entry?

I.E. If we take a week-long trip to Canada with a valid TN, reenter on that TN, and apply for AOS 3 days later, is that kosher?

[Teddy B 17,252]

From what I posted above, it appear that it's 60 days upon entry whether the TN is new or not. (But that's not a USCIS site and it may not be completely correct.)

those of TN status have at least a 30 to 60 day waiting period upon entering the United States before they may apply for AOS

[Harpa Timsah 13,258]

TN is a non-immigrant visa and if you enter with immigrant intent you can be denied at the border. 30/60 rule is a myth. You can keep working on your TN but not leave the country while AOS is pending (until AP is in hand). Since TN is a long-term status, you are unlikely to have any trouble entering but they can deny you for immigrant intent, so best to skip this upcoming trip.