Clarification on TN Visa lapsing during AOS process

[ooogaboooga 11]

Hi all,

 

I've been on a 3 year TN (Canada) that expires in early November 2018. We filed our AOS package with EAD/AP in late June 2018.

 

I just want to clarify two things:

 

1) I can stay in the US while AOS is pending. 

2) I must stop working at my current job as soon as the TN lapses, and can resume after I receive the EAD. Thankfully I talked to my boss and she said to not worry about not having a job. What gets confusing to me is can I just take a leave of absence, or must I cut all ties and quit? If I take a leave of absence I think I can still be covered under the company's health insurance. If NOT, I'll have to make arrangements to be covered under my husband's insurance. 

 

Just wanted to reach out before I contact a lawyer.

 

eeek, thank you all

[Manzan76 6]

The EAD/AP typically takes 90 days, so hopefully you get that before the TN expires.  Otherwise a leave of absence (or paid vacation) should be ok to keep your health insurance.

[NiNi & RiRi 0]

Actually , nowadays EAD takes 4.5 to 6.5 months per USCIS website and current trends.

[azblk 338]

5 hours ago, ooogaboooga said:

Hi all,

 

I've been on a 3 year TN (Canada) that expires in early November 2018. We filed our AOS package with EAD/AP in late June 2018.

 

I just want to clarify two things:

 

1) I can stay in the US while AOS is pending. 

2) I must stop working at my current job as soon as the TN lapses, and can resume after I receive the EAD. Thankfully I talked to my boss and she said to not worry about not having a job. What gets confusing to me is can I just take a leave of absence, or must I cut all ties and quit? If I take a leave of absence I think I can still be covered under the company's health insurance. If NOT, I'll have to make arrangements to be covered under my husband's insurance. 

 

Just wanted to reach out before I contact a lawyer.

 

eeek, thank you all

1. Yes. Do not leave the US until you get AP or Green card. If you do you will not be able to come back for a long time.

2. You can not take a leave of absence. You employer will terminate you the moment your TN visa expires unless there is a grace period.

[Manzan76 6]

On 9/13/2018 at 10:24 PM, azblk said:

1. Yes. Do not leave the US until you get AP or Green card. If you do you will not be able to come back for a long time.

2. You can not take a leave of absence. You employer will terminate you the moment your TN visa expires unless there is a grace period.

Have you held a TN visa? I have.  My understanding while I had it was not that the employer will terminate you the moment it expires, you just can't work and fall back to tourist status.  Do you have a link to support your claim?

[azblk 338]

4 hours ago, Manzan76 said:

Have you held a TN visa? I have.  My understanding while I had it was not that the employer will terminate you the moment it expires, you just can't work and fall back to tourist status.  Do you have a link to support your claim?

I don't get your point. Every employer is required to remove any employee fro payroll the minute their authorization to work expires effectively firing them.  If that employee subsequently gets new work authorization then they can and may be rehired . Whether that employee falls back to tourist visa is irrelevant because people on tourist visas are not able to work legally.

[A&H2018 146]

Just expedite it and do not even worry about this stuff. Call your senator/congressman get employer letter. TN expedites have been rather easy.

[eckoin 211]

On 9/16/2018 at 6:43 PM, Manzan76 said:

Have you held a TN visa? I have.  My understanding while I had it was not that the employer will terminate you the moment it expires, you just can't work and fall back to tourist status.  Do you have a link to support your claim?

The moment TN (or any other work authorization) expires, the employer must legally terminate you unless you have a new TN, or an EAD, or H1B or whatever other authorization to work.  Unless they're willing to break the laws for you, you can't be on payroll under a leave of absence (but they can certainly hold the job for you and re-hire you as soon as you get work authorization).

 

You also do not fall back to tourist visa when your TN expires or is otherwise made invalid (e.g. fired or quit).  This isn't relevant, due to a marriage-based AOS, but in general, this is absolutely not true, and will cause many issues when you eventually leave and then try to re-enter the US.  You must "immediately" leave the country, the grace period for which is not set in stone, but they prefer you leave within a week.  If you cannot leave the US within 1-2 weeks (again, this is somewhat discretionary), you have to apply to adjust your status to "tourist".  These will usually be denied, but it will take 8+ months to get denied, so in the meantime, you are technically legally in the US awaiting the outcome of your AOS application.  If you leave before it gets denied, you're good (you abandon your application).

 

If you already applied for (any type of) AOS, you can remain in the country, and you actually can't leave without AP unless you're planning to abandon this AOS application.  

 

Like @A&H2018 said though, @ooogaboooga, you have an easy case to expedite your EAD.  I also filed in late June, my TN also expires in November, and I applied to expedite my EAD on Aug. 28, and the EAD card was mailed yesterday.  If you do it today, you will likely get your card by the end of October - no lapse in employment authorization, and if you want, you could use that EAD to take an unpaid leave and remain on the payroll with your health insurance.

Edited September 19, 2018 by eckoin

[eckoin 211]

On 9/13/2018 at 5:38 PM, Manzan76 said:

The EAD/AP typically takes 90 days, so hopefully you get that before the TN expires.  Otherwise a leave of absence (or paid vacation) should be ok to keep your health insurance.

 

On 9/13/2018 at 9:28 PM, NiNi & RiRi said:

Actually , nowadays EAD takes 4.5 to 6.5 months per USCIS website and current trends.

I've seen a lot more people saying 8 months is fair game nowadays as well

[ooogaboooga 11]

Thank you so much @eckoin, so helpful! 

 

What were the steps to expediting your EAD? Would I just have my employer write a letter saying they'd like me to return to work ASAP? 

 

[eckoin 211]

15 minutes ago, ooogaboooga said:

Thank you so much @eckoin, so helpful! 

 

What were the steps to expediting your EAD? Would I just have my employer write a letter saying they'd like me to return to work ASAP? 

 

Here are the steps I took, and it worked pretty well for me:

 

1. Call main USCIS line.  Quote the I-765 case number, and say you want to expedite your EAD request.  They'll read you the criteria; choose the "severe financial loss to person".  They open a case for you, which will pretty much instantly appear on your USCIS.gov status.

2. Within a week (3 days seems to be standard), they will assign an officer to your case.  Some officers prefer email, others mail.  Mine mailed me a request for proof of severe financial loss, and it arrived in about a week.  On the request, there will be a fax number, and "ATTN to", so you fax your evidence to that.

 

The evidence I submitted was:

 

- I-765 NOA and the letter from step 2 above

- letter from me, explaining that my income is very important to the well-being of my family and that losing it would mean severe financial loss to us, as well as the loss of our employer-provided healthcare plan (we're all on my plan), as well as a list of documents attached

- letter from my employer, saying that they're interested in extending me a permanent position due to how wonderful I am (pending my ability to accept permanent employment), and that they obviously can't let me work without authorization so to please expedite my request (I wrote the letter, HR signed it and put it on the company letterhead)

- all of my W-2s

- three recent pay stubs

- joint tax return from last year

- driver's licence, copy of passport pages (biographical & TN stamp with I-94 since I crossed by land), NEXUS card, copy of marriage certificate - added all this for good measure

 

Wrote the "ATTN to" on all of the above, and faxed it over.  Within five business days, it was approved (still waiting on the card, but check my signature - went really smoothly)

 

Good luck!

Edited September 19, 2018 by eckoin

[eckoin 211]

Oh and @ooogaboooga, here's the fancy EAD expedite page we're all using for rants and updates: 

 

[ooogaboooga 11]

58 minutes ago, eckoin said:

Here are the steps I took, and it worked pretty well for me:

 

1. Call main USCIS line.  Quote the I-765 case number, and say you want to expedite your EAD request.  They'll read you the criteria; choose the "severe financial loss to person".  They open a case for you, which will pretty much instantly appear on your USCIS.gov status.

2. Within a week (3 days seems to be standard), they will assign an officer to your case.  Some officers prefer email, others mail.  Mine mailed me a request for proof of severe financial loss, and it arrived in about a week.  On the request, there will be a fax number, and "ATTN to", so you fax your evidence to that.

 

The evidence I submitted was:

 

- I-765 NOA and the letter from step 2 above

- letter from me, explaining that my income is very important to the well-being of my family and that losing it would mean severe financial loss to us, as well as the loss of our employer-provided healthcare plan (we're all on my plan), as well as a list of documents attached

- letter from my employer, saying that they're interested in extending me a permanent position due to how wonderful I am (pending my ability to accept permanent employment), and that they obviously can't let me work without authorization so to please expedite my request (I wrote the letter, HR signed it and put it on the company letterhead)

- all of my W-2s

- three recent pay stubs

- joint tax return from last year

- driver's licence, copy of passport pages (biographical & TN stamp with I-94 since I crossed by land), NEXUS card, copy of marriage certificate - added all this for good measure

 

Wrote the "ATTN to" on all of the above, and faxed it over.  Within five business days, it was approved (still waiting on the card, but check my signature - went really smoothly)

 

Good luck!

 

Amazing!! Thank you!

 

[eckoin 211]

22 minutes ago, ooogaboooga said:

 

Amazing!! Thank you!

 

Anytime @ooogaboooga!  If I were you, I'd do step 1 today (call USCIS right now).  I wanted my whole "package" to be ready before I called, but by the time I received the request for additional information, I had everything ready for over a week... waste of time.  Since you're a bit more pressed for time than I was three weeks ago--call now, and then ask your employer to sign a letter.  PM me if you want me to send you the letter from my work as a sample.  

 

Also, on the phone, they will ask you to provide a brief overview of your reasoning.  I just said, "I would like to continue my employment, the income from which contributes a large portion to our family's expenses".  They'll ask for more proof either way, but they'll ask on the phone, too, so have a two-sentencer ready.

Edited September 19, 2018 by eckoin

[A&H2018 146]

Grace period is 60days for TN/L1 visas from last years law. That said, grace period is based on this thing called “NAFTA” which may or may not exist soon here. Get thet expedite asap.