Help! Canadian with expiring TN Visa trying to marry a US Citizen and receive work authorization in the US

[js66 0]

Hi,

I'm a Canadian citizen and have been here in the US for about 8 years. Every year my TN visa expires I head to the boarder and get a new one.

My girlfriend and I have been talking about getting married for a while now. To complicate things there are some changes at my work. My job is switching from a contractor to a company employee. Sounds great as far as money and benefits, but the issue is...

The company wants me working on the Canadian payroll from Canada. They don't want to continue getting me TN Visas. But they have told me that once I am legal to work in the US they will transfer me from the Canadian payroll to the American payroll. Essentially when I'm legal to work I will have a job in the US.

My dilema is this... my TN Visa as a contractor expires in late June. If I was able to get married in the next week or two can I be legal to work in the US? I've heard work authorization takes 90 days or something like that. Would it be possible to do an adjustment of status if my TN runs out before I would be eligible to work in the US or get a green card? Does there have to be a certain amount of time left on your TN Visa to get an adjustment of status?

I'm hoping it's possible and I can get the adjustment of status, return to Canada, wait out the 90 days or whatever it might be, and then return to the US.

I'm very new to this as this situation has just came up in the last 1-2 days. If I'm way off on any of this someone please set me straight.

Any suggestions or help would be greatly appreciated.

[Bobby+Umit 161]

Hi,

I'm a Canadian citizen and have been here in the US for about 8 years. Every year my TN visa expires I head to the boarder and get a new one.

My girlfriend and I have been talking about getting married for a while now. To complicate things there are some changes at my work. My job is switching from a contractor to a company employee. Sounds great as far as money and benefits, but the issue is...

The company wants me working on the Canadian payroll from Canada. They don't want to continue getting me TN Visas. But they have told me that once I am legal to work in the US they will transfer me from the Canadian payroll to the American payroll. Essentially when I'm legal to work I will have a job in the US.

My dilema is this... my TN Visa as a contractor expires in late June. If I was able to get married in the next week or two can I be legal to work in the US?

I would think you would be legal till the TN visa expires. After that, you wont be legal to work till you AOS and receive the EAD

I've heard work authorization takes 90 days or something like that.

Usually.

Would it be possible to do an adjustment of status if my TN runs out before I would be eligible to work in the US or get a green card? Does there have to be a certain amount of time left on your TN Visa to get an adjustment of status?

Once you get married, you can attempt the AOS. You do not need time left on your visa, but would suggest you start the AOS before you go out of status.

I'm hoping it's possible and I can get the adjustment of status, return to Canada, wait out the 90 days or whatever it might be, and then return to the US.

Once you start the AOS, you cannot leave until you either get the AP or the greencard. If you leave prior to the AP, you are abandoning the AOS, and you will have to file for different visa.

I'm very new to this as this situation has just came up in the last 1-2 days. If I'm way off on any of this someone please set me straight.

Suggest you check the guides above.

Any suggestions or help would be greatly appreciated.

Edited April 15, 2009 by Bobby_Umit

[js66 0]

Once you start the AOS, you cannot leave until you either get the AP or the greencard. If you leave prior to the AP, you are abandoning the AOS, and you will have to file for different visa.

By AP do you mean approval process?

This sounds like it may be the only obsticle. I travel a lot for my job and staying put would be difficult. I would also have to be on the Canadian payroll when I take the new position.

Do you know if they can grant any special permission to travel if the job requires it?

Thanks for your response.

[Otto 83]

Contrary to an age-old popular belief - marrying a US Citizen isn't a magic wand that quickly opens doors (such as work authorization and/or a PR/Green Card). It just doesn't happen that fast - think in terms of months not weeks.

[js66 0]

Contrary to an age-old popular belief - marrying a US Citizen isn't a magic wand that quickly opens doors (such as work authorization and/or a PR/Green Card). It just doesn't happen that fast - think in terms of months not weeks.

I'm starting to see that. I thought my 8 years on a TN visa may help and it sounds like AOS is much easier than the Fiance visas. Not sure I will be able to do the AOS though, I'm still holding out hope.

My problem is that I have to be on the Canadian payroll or be eligible to work in the US in about a month. Since I can't be eligible to work in the US in a month I think the only option is to return to Canada.

I did read this:

Can my spouse leave the United States, and then re-enter, before receiving the Green Card (conditional permanent residency)?

A...The spouse cannot re-enter the US unless they have "advance parole" authorization (application form I-131). Advance parole allows you to re-enter the US before approval of Adjustment of Status. Without advance parole approval, leaving the United States is considered an abandonment of your application for Adjustment of Status. Without advance parole approval, the USCIS (INS) will consider you an intending immigrant without a valid visa, and you will be denied entry. If you do not apply for advance parole when you file for Adjustment of Status, contact your local USCIS (INS) office to find out how long it takes them to issue Advance Parole. Although advance parole is supposed to be issued to anyone who wants it for any reason at all, some local USCIS (INS) offices may take weeks or months, and may require proof of a serious emergency.

That said.. I think my best option may be to get married, file for AOS and then try and get advance parole to go to Canada. While in Canada I can continue work on the Canadian payroll thus keeping my job while waiting to get the EAD. I can transfer back to the US payroll when/if they let me return.

Can anyone tell me if I'm correct on this?

This is a great site! Thanks to all for the help so far.

[Bobby+Umit 161]

Once you start the AOS, you cannot leave until you either get the AP or the greencard. If you leave prior to the AP, you are abandoning the AOS, and you will have to file for different visa.

By AP do you mean approval process?

This sounds like it may be the only obsticle. I travel a lot for my job and staying put would be difficult. I would also have to be on the Canadian payroll when I take the new position.

Do you know if they can grant any special permission to travel if the job requires it?

Thanks for your response.

AP = advanced parole.

It allows the immigrant the ability to travel before they can (during the AOS)

If you travel a lot, then perhaps this isn't the way to go.

I seriously doubt they would give you "special permission" for working - it has to actually be a "compelling emergency".

With that said, read the instructions for the I-131 - in paticular all the warnings.

An option is that you get married, return to Canada, and then your wife can file for the CR-1 visa (which will get you the greencard/ead when granted). Guide for visas

[js66 0]

AP = advanced parole.

It allows the immigrant the ability to travel before they can (during the AOS)

If you travel a lot, then perhaps this isn't the way to go.

I seriously doubt they would give you "special permission" for working - it has to actually be a "compelling emergency".

With that said, read the instructions for the I-131 - in paticular all the warnings.

An option is that you get married, return to Canada, and then your wife can file for the CR-1 visa (which will get you the greencard/ead when granted).

Thanks for the response!

The real reason for the return to Canada is to keep my position at work. Work is not being very helpful. They told me that if I get on the Canadian payroll when I accept the position they can swithch me back to the US later. If I don't get on the Canadian payroll they cannot hold my job for me.

I just talked to a immigration attorney today over the phone. We had a long conversation and she told me to plan on this:

1) Get married

2) File the paperwork for an EAD and advance parole

3) Travel back to Canada and resume work there to keep my job

4) Stay in Canada the amount of time needed for the EAD and AP to get approved

5) When the EAD and AP are approved return to the US (about 90 days)

Does this seem alright to you?

I asked her about leaving during the EAD and AP process and she told me that the issue is returning to the US without them. She said that as long as I don't try to return without the AP I would be alright.

She said that if for some reason there was a problem when I returned, she could switch the application to a CR-1 visa in mid processing. Then I would have to wait about 6 months total.

If anyone has any comments or suggestions please let me know.

[JERIII 8]

Thanks for the response!

The real reason for the return to Canada is to keep my position at work. Work is not being very helpful. They told me that if I get on the Canadian payroll when I accept the position they can swithch me back to the US later. If I don't get on the Canadian payroll they cannot hold my job for me.

I just talked to a immigration attorney today over the phone. We had a long conversation and she told me to plan on this:

1) Get married

2) File the paperwork for an EAD and advance parole

3) Travel back to Canada and resume work there to keep my job

4) Stay in Canada the amount of time needed for the EAD and AP to get approved

5) When the EAD and AP are approved return to the US (about 90 days)

Does this seem alright to you?

I asked her about leaving during the EAD and AP process and she told me that the issue is returning to the US without them. She said that as long as I don't try to return without the AP I would be alright.

She said that if for some reason there was a problem when I returned, she could switch the application to a CR-1 visa in mid processing. Then I would have to wait about 6 months total.

If anyone has any comments or suggestions please let me know.

The list doesn't mention filing for adjustment of status. Was that part of the plan? If so, are there some special issues that revolve around the fact you are on a TN visa? If not, the plan doesn't make sense to me.

[Bobby+Umit 161]

AP = advanced parole.

It allows the immigrant the ability to travel before they can (during the AOS)

If you travel a lot, then perhaps this isn't the way to go.

I seriously doubt they would give you "special permission" for working - it has to actually be a "compelling emergency".

With that said, read the instructions for the I-131 - in paticular all the warnings.

An option is that you get married, return to Canada, and then your wife can file for the CR-1 visa (which will get you the greencard/ead when granted).

Thanks for the response!

The real reason for the return to Canada is to keep my position at work. Work is not being very helpful. They told me that if I get on the Canadian payroll when I accept the position they can swithch me back to the US later. If I don't get on the Canadian payroll they cannot hold my job for me.

I just talked to a immigration attorney today over the phone. We had a long conversation and she told me to plan on this:

1) Get married

2) File the paperwork for an EAD and advance parole

3) Travel back to Canada and resume work there to keep my job

4) Stay in Canada the amount of time needed for the EAD and AP to get approved

5) When the EAD and AP are approved return to the US (about 90 days)

Does this seem alright to you?

I asked her about leaving during the EAD and AP process and she told me that the issue is returning to the US without them. She said that as long as I don't try to return without the AP I would be alright.

She said that if for some reason there was a problem when I returned, she could switch the application to a CR-1 visa in mid processing. Then I would have to wait about 6 months total.

If anyone has any comments or suggestions please let me know.

That doesn't sound right to me. If you leave prior to getting the AP, your AOS is considered abandoned.

Question 4. Should I wait for the approval of my application for AP before I travel?©MurthyDotCom

Under current regulations, an AP document cannot be granted to a person outside of the U.S. One hears about people who did not wait for the Advance Parole document to be issued and had someone send it to them while they were outside of the United States. This is not the accepted procedure, and if the person left without having AP or without having H1B, H-4, L-1 or L-2 status, s/he is deemed to have abandoned the I-485 Adjustment of Status application.

Source: Murthy AOS info

[js66 0]

That doesn't sound right to me. If you leave prior to getting the AP, your AOS is considered abandoned.

That's what I thought as well. I went to another attorney today and he told me that can't be done.

I think I have narrowed my search down to the K1, K3 or the CR-1 Visa. I am currently not married but have been looking to set a date for a while. I may get married next week if it speeds up the process. I'm just looking for the ability to work in the US and the least amount of time away from my lady.

I have looked at all the timelines here Visa Journey Timelines for K1, K3 and CR-1 Visas

I'm getting a lot of conflicting information though. I've now paid to see one attorney and talked to another over the phone.

Attorney 1

- Said a CR-1 visa will take 6 months. Possibly less because I'm a Canadian citizen who's been back and forth between the US for about 8 years.

- She also said that while applying for the CR-1 I can't return to the US and visit.

- She was the one I talked to about the AOS and leaving the country after filing. So I'm not too sure she's right about everything.

Attorney 2

- Said a CR-1 visa will take 12 months. He said he could lie to me and tell me different but he would estimate 12 months. He told me where you live in the US can change the amount of time to get approved. He said filing from where I am is slow.

- Said that I could visit the US if I had papers saying his law firm was supporting me and that my long term goal was to get a green card. The logic was I would leave when I said I was going to because I don't want to forfit the green card.

- I think he was correct on the AOS situation, saying I would need to remain in the US for 90 days.

- He told me that the CR-1 visa would take longer than a Fiance Visa. He said.. I know that sounds wierd, because we're in the US, but they seem to process slower. Up to 3 months slower.

So I ask you guys.. Who's right? Who should I be dealing with?

Should I be looking at getting a K1, K3 or CR-1? I'm currently in the US and could marry or I could wait and return to Canada.

Is a CR-1 typically 6 months or will it be closer to 12? From the graphs I've seen here (but I admitt that I don't completely understand) it looks like it happens in under 6 months. From a lot of the timelines that I linked to above, it jumps all over the place. Some people are 200 days others are 400.

Thanks again for all the help and support.

[trailmix 77]

Attorney 1

- Said a CR-1 visa will take 6 months. Possibly less because I'm a Canadian citizen who's been back and forth between the US for about 8 years.

- She also said that while applying for the CR-1 I can't return to the US and visit.

- She was the one I talked to about the AOS and leaving the country after filing. So I'm not too sure she's right about everything.

Wrong and wrong. The CR-1 visa takes about a year. You can visit, you just need to bring strong ties to Canada to show at the border crossing, many Canadian's do this. Granted it is up to the officer at the POE each time.

Attorney 2

- Said a CR-1 visa will take 12 months. He said he could lie to me and tell me different but he would estimate 12 months. He told me where you live in the US can change the amount of time to get approved. He said filing from where I am is slow.

- Said that I could visit the US if I had papers saying his law firm was supporting me and that my long term goal was to get a green card. The logic was I would leave when I said I was going to because I don't want to forfit the green card.

- I think he was correct on the AOS situation, saying I would need to remain in the US for 90 days.

- He told me that the CR-1 visa would take longer than a Fiance Visa. He said.. I know that sounds wierd, because we're in the US, but they seem to process slower. Up to 3 months slower.

Yes, around 12 months. Yes regarding the Adjustment of status - the 90 days is a guideline - my Brother in Law applied and it took his 5 months to arrive. Most are less.

So I ask you guys.. Who's right? Who should I be dealing with?

If you have a straight forward case, why are you hiring a lawyer? The best person to handle this is your and your soon-to-be wife.

That said, if I had to chose between the two it would be Attorney 2 - Attorney 1 does not know what she is talking about.

Should I be looking at getting a K1, K3 or CR-1? I'm currently in the US and could marry or I could wait and return to Canada.

K1 = Fiancee visa, maybe a bit faster than the CR1 - sometimes not, have to adjust status after you get this visa and enter the States.

K3 - Have to be married, maybe a bit faster than the CR1 - sometimes not, have to adjust status after you get this visa and enter the States.

CR1 - Takes approximately a year. You can work as soon as you enter the U.S., virtually, just need to get your SSN and Green Card.

You can get a good idea by looking at the Montreal timeline to interview thread in the Canada forum - there is also a K visa spreadsheet kept in a thread there too.

Edited April 16, 2009 by trailmix

[js66 0]

Thanks for the detailed reply Trailmix!

A few questions. I have to admit I'm very new at this and was kind of forced into this a few days ago when my company informed my that I won't be getting a TN Visa as I was previously told.

I have seen a lot of people's time lines here and unless I'm reading them wrong it looks like a little over 6 months to the interview and possibly completion in some cases. Are these people the lucky ones? Is this rare or am I not understanding what I'm reading?

If I am going to visit is there any way to approve my visit before spending $$$ on airfare to the US?

Thanks again for your help!

[Bobby+Umit 161]

Thanks for the detailed reply Trailmix!

A few questions. I have to admit I'm very new at this and was kind of forced into this a few days ago when my company informed my that I won't be getting a TN Visa as I was previously told.

I have seen a lot of people's time lines here and unless I'm reading them wrong it looks like a little over 6 months to the interview and possibly completion in some cases. Are these people the lucky ones? Is this rare or am I not understanding what I'm reading?

Depends on how complicated your case is, background, etc... My own case is moving along nicely

If I am going to visit is there any way to approve my visit before spending $$$ on airfare to the US?

Nope - no way to pre-approve. Every time you come here on a non-immigrant/immigrant visa, every time, you can be stopped from entering the country. You have to pass inspection at the POE at the call of the CBP

Thanks again for your help!

Getting married will not speed things up.

Again - if you wish to stay working in Canada, and get married, then the best route would be the CR-1 visa. You can visit during the wait, you just have to pass inspection at the POE (strong ties back to the home country).

Since your from Canada, which isn't a high fraud country, you shouldn't have much difficulty.

[js66 0]

Getting married will not speed things up.

Again - if you wish to stay working in Canada, and get married, then the best route would be the CR-1 visa. You can visit during the wait, you just have to pass inspection at the POE (strong ties back to the home country).

Since your from Canada, which isn't a high fraud country, you shouldn't have much difficulty.

Depends on how complicated your case is, background, etc... My own case is moving along nicely

Thanks again for your help. If you don't mind me asking what does... moving along nicely mean? Are you looking at 6 months, 8 months or 12?

Looking at processing times on this site I think it says 6 months for the I-130. Is that about correct? As I said I am very new to the process what would come after the I-130? I'm guessing the interview and if that goes well I'm approved? I've read through the guides and I think I may not have a full grasp on the entire process. Not to mention every attorney tells me something different.

As far as strong ties to Canada I'm a little worried about that. I will most likely try and stay with a relative or friend who could use a roommate. I'm not sure if I will have an appt lease to show someone with my name on it, an electric bill for my appt, etc. etc. Any suggestions?

Can't thank you or the other great people on this board enough... you are all so helpful.

[metals95 1]

JS66

You may want to inform your employer that the TN visa can now be renewed for 1, 2 or 3 years and try to talk them into one more. In that time if you and your SO really decide to get married, you could, and do the 130, 485 etc and get the EAD and AP. You would be good to go.

I was TN for a long time too, off an on for 8 years ( with an H1B in the middle) (6 TN's total). Luckily for me my employer agreed to do another H1B that gave me clear dual intent.

As such if your Employer wont do another TN, you can,

Return to Canada and file for K1, or CR1 ( if married)

Quit your job, get married and wait for the AP EAD before leaving US(filing 130, 485 etc)

Unless you can talk your employer into a new TN or better the multi year TN your options are low.

If you go back to Canada for one year and work for the same company, they can do L1, & L1 is dual intent, you could work for them and then adjust through marriage.

Edited April 16, 2009 by metals95