Working during AOS from TN

[jubbadubba 0]

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.

Skip the trip even if we are not yet married, have a valid TN for unlimited re-entry, and have not yet prepared documents or filed for AOS? The plan was to file for AOS upon re-entering on the TN. The only way they would have any demonstration of intent is if they have mind-reading devices?

[Harpa Timsah 13,258]

Yes, that is true, but it also against TOS of this site to suggest that you enter the US on a non-immigrant visa with immigrant intent, because it is fraud.

But I am sure people do it every day.

[Dakine10 5,452]

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!

Tn status will remain valid for the authorized employer until one of the following occurs.

- the AOS is adjudicated.

- the EAD is used for employment.

- the Tn beneficiary leaves and reenters the USA using the advanced parole document.

- the Tn beneficiary resigns or employment with the Tn sponsor is otherwise terminated.

- the Tn expires.

[warlord 73]

I was on a TN status (it's actually not a visa btw). And I adjusted just fine while on it when I got married. You won't have any issues and now it's even easier to adjust while on a TN status because the length is now a lot longer than when I was on a TN.

Before in my case, all TN's were only a year long. So it was very important to time everything to get married and adjust and still have enough time left on the TN before you applied for AOS got your EAD. Today, the TN's are a lot longer than 1 year making it so much easier to work with.

Yes don't leave the country until you at least get the AP (or better yet the temp GC). Once you have filed for AOS, technically your TN isn't viewed as active, however, INS has never changed this and never done anything to de-activate a TN when applying for AOS. So you can still work without issues for the entire TN duration, which in your case is so much more time than you need as the EAD doesn't take that long to come in after you apply for AOS.

Hope this sums things up pretty much. And they can still work for their employer, regardless of where you move to as well as long as the TN is for the same employer and position.

The only issues with the TN-AOS route is if the person gets laid off or quits or something or tries to get another job. Once you apply for the AOS, you cannot get a new TN for your current job or any other job as you will now be flagged. So that is the only real concern, but seems like everything should be pretty simple in your case...

[jubbadubba 0]

Yes don't leave the country until you at least get the AP (or better yet the temp GC). Once you have filed for AOS, technically your TN isn't viewed as active, however, INS has never changed this and never done anything to de-activate a TN when applying for AOS. So you can still work without issues for the entire TN duration, which in your case is so much more time than you need as the EAD doesn't take that long to come in after you apply for AOS.

Hope this sums things up pretty much.

Thanks, everybody summed it up very well.

So it seems like two things are going on at once-- once you apply for AOS as a spouse from within the country, you become provisionally allowed to remain in the USA (without getting a new job) until your EAD comes. In the case that you were TN, your status is still good to let you work at that same employer until you trigger one of the conditions that ends it-- leaving, job hunting, finishing AOS etc.

Several people have mentioned to make sure your TN doesn't end in the middle of your AOS pending process. This is not a risk in our case-- but out of curiosity, is this a warning just so people don't risk losing their employment? Or does a lapsed TN in the middle of AOS pending suddenly invalidate your AOS application?

[Teddy B 17,252]

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.

I kind of thought it might be, just like it is for AOS off a tourist visa, but wasn't sure if it was different for TN.

[Dakine10 5,452]

Thanks, everybody summed it up very well.

So it seems like two things are going on at once-- once you apply for AOS as a spouse from within the country, you become provisionally allowed to remain in the USA (without getting a new job) until your EAD comes. In the case that you were TN, your status is still good to let you work at that same employer until you trigger one of the conditions that ends it-- leaving, job hunting, finishing AOS etc.

Several people have mentioned to make sure your TN doesn't end in the middle of your AOS pending process. This is not a risk in our case-- but out of curiosity, is this a warning just so people don't risk losing their employment? Or does a lapsed TN in the middle of AOS pending suddenly invalidate your AOS application?

If the Tn expires is work authorization would end until the EAD is issued. It wouldn't affect the AOS otherwise.

[Dakine10 5,452]

I kind of thought it might be, just like it is for AOS off a tourist visa, but wasn't sure if it was different for TN.

The 30/60 rule is actually in the field adjudicators manual. There is a procedure here for how it should be applied, but it's seldom used.

Back in the late 90's, there was a period where they were catching physicians who would enter on Tn status and proceed with employment sponsored green cards right away. I don't think they could do much for immediate relative categories though.

[warlord 73]

Harpa Timsah, on 28 Apr 2016 - 3:43 PM, said:

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.

I kind of thought it might be, just like it is for AOS off a tourist visa, but wasn't sure if it was different for TN.

That's because the TN is a status and not a visa like a tourist visa, H1 visa etc. It's a different classification only open to specific NAFTA. While a visa is used worldwide. This is what makes it different classification, unlike visas that have a timeline, but aren't as specific...

[jubbadubba 0]

The 30/60 rule is actually in the field adjudicators manual. There is a procedure here for how it should be applied, but it's seldom used.

Back in the late 90's, there was a period where they were catching physicians who would enter on Tn status and proceed with employment sponsored green cards right away. I don't think they could do much for immediate relative categories though.

Here's that passage in the Adjudicator's Field Manual (note that these paragraphs are talking about nonimmigrant violations specifically on a B-type visa):

_____________________________________________________________________________

(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry. For a finding of an inadmissibility for inconsistent conduct within 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or her nonimmigrant status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4©(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrant status more than 60 days after admission into the United States, the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)©(i) inadmissibility.

___________________________________________________________________________________

seems like it's not entirely a myth, but like you say probably not rigorously applied. might still be a good guideline?

[newacct 688]

Here's that passage in the Adjudicator's Field Manual (note that these paragraphs are talking about nonimmigrant violations specifically on a B-type visa):

_____________________________________________________________________________

(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry. For a finding of an inadmissibility for inconsistent conduct within 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or her nonimmigrant status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4©(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrant status more than 60 days after admission into the United States, the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)©(i) inadmissibility.

___________________________________________________________________________________

seems like it's not entirely a myth, but like you say probably not rigorously applied. might still be a good guideline?

I believe you are looking at the Foreign Affairs Manual, not the Adjudicator's Field Manual.

[jubbadubba 0]

I believe you are looking at the Foreign Affairs Manual, not the Adjudicator's Field Manual.

RIGHT. Sorry. Here's the text in the AFM that references that part of the FAM (my bold for emphasis)

The 30/60 day rule is used for guidance ONLY and is not governed by the statutes or the regulations. The text provided above must not be used in a denial. It is information for the USCIS field offices only.

The 30/60 day rule is not a conclusive tool to ascertain misrepresentation. The officer may still find the alien obtained admission by misrepresentation, if, on the basis of all the facts and evidence in the record, a reasonable person could reasonably find that the alien had done so.

A more detailed description of the 30/60 day rule can be found at 9 Foreign Affairs Manual (FAM) 40.63, Note 4.7

https://cliniclegal.org/sites/default/files/ADJUDICATORS%20FIELD%20MANUAL.pdf