From TN to Green Card through marriage?

Hello:

I'm glad I found this forum, I feel it will be very helpful to get your advice and share experiences. I am Canadian and have been working in the US for few years on a TN visa.

I got married to an American few months ago and I would like to switch my TN to a green card. We have been trying to figure out what needs to be done and we're very confused. There are many forms to fill and I'm not sure which ones--- and in what order. My TN is expiring at the end of March (08) so I would like to have the process in place before that. Has anybody gone through this and can you please help?

Check out www.visajourney.com for marriage based adjustment of status information. There is an Adjustment of Status forum, as well as a Canada specific forum and I'm sure there are other Canadians there who've done the TN to marriage based adjustment.

You may end up having to temporarily quit your job after your TN expires, because I don't think your adjustment will be completed by March. You will not be able to renew your TN I don't think after you have sent in your adjustment of status application.

I'm not entirely familiar with the adjustment of status from a TN, but I think its basically the same as from a tourist visa. Have your USC spouse send in the I-130 sponsorship petition, and you fill out the I-485 (adjustment of status) I-735 (employment authorization) and I-131 (?) (advance parole).

I specialize in this issue.

This is a sophisticated legal issue.

We don't allow clients to file for adjustment of status while holding a TN, its too dangerous; there's a realistic possibility that you could face a fraud charge when you renew the TN with a pending adjustment application. There is a also a realistic possibility that the TN would be refused because no CBP Officer will buy the implication that you have nonimmigrant intent with a pending adjustment application.

You need to choose consular processing. All Canadians immigrant visas are processed in Montreal. The I-130 will indicate that you choose to consular process instead of filing for adjustment.

Call me anytime to discuss, we handle this issue frequency.

Consular processing however means that at some point the person would have to leave the US and remain in Canada until the process is complete would it not?

Currently consular processing of CR1 petitions and applications based on marriage are taking about 1 year.

Do you mean that if this person's spouse petitions for an immigrant visa for them, that they can remain in the US, until their CR1 process is complete? Will a TN renewal not potentially be denied for the same reasons you've stated above?

Consular processing however means that at some point the person would have to leave the US and remain in Canada until the process is complete would it not?

They don't need to depart while Montreal processes the immigrant visa. They do have to return for an interview. They then enter the U.S. as an LPR. (Lawful Permanent Resident)

Currently consular processing of CR1 petitions and applications based on marriage are taking about 1 year.

Consular Processing can be faster than filing for adjustment of status.

Do you mean that if this person's spouse petitions for an immigrant visa for them, that they can remain in the US, until their CR1 process is complete?

Yes. Their TN status gives them that right.

Will a TN renewal not potentially be denied for the same reasons you've stated above?

No because at the time of entry, when the Canadian is renewing the TN, they can't have immigrant intent (the intent to establish permanent residence on that entry) because they are forced to depart the U.S. for the IV interview in Montreal).

Are you refering to "Consular Processing" meaning that the US citizen spouse sends the I-130 petition directly to a US consulate in Canada then? Not to a processing centre in the US?

If so, then that particular option is not available to this couple because they live in the US, not Canada.

In order for a couple to "consular process" as I think you're suggesting, the US citizen half *must* be a legal permanent resident In Canada. That is not the case for the OP, as they're in the US, her with a TN.

They're only option is to apply for Adjustment of Status, or have her return to Canada for about a year and petition and apply for an immigrant visa.

Here is the link to the I-130 form the instructions on it have the address where to send an adjusment application.

Here is a link to a site that details Direct Consular Filing which clearly states that a US citizen needs to be permanent resident in Canada to be eligible to file from Canada.

U.S. citizens resident in Canada who wish to file I-130 petitions on behalf of their spouse, minor children or parents may do so at the U.S. Embassy or U.S. Consulate in whose district they reside. Please check with the specific consular officer for the filing requirements and procedures at that office. Some offices permit filings by mail. Many offices require filings in person by appointment only. In the latter case, both the petitioner and the beneficiary must appear in person at the time of filing.

And of course, the www.visajourney.com website where there is more information and a message forum with other couples who've done various types of immigration to the US based on marriage.

I'm not referring to a U.S. Citizen who resides in Canada. I'm referring to a U.S. Citizen who resides in the U.S., who files for a Canadian national spouse. They can file for adjustment of status or consular processing in Montreal. The Canadian spouse does not need to reside in Canada if they are in a nonimmigrant status in the United States.

There is some confusion with consular processing because most people who consular process and elect not to file for adjustment of status are not presently in the U.S. Many have to consular process because they are barred from filing for adjustment because of prior immigration violations.

How can they "consular process" though, if hte US citizen is not a resident of Canada? The US consulate website clearly states that a consular petition will only be accepted if the US citizen is a legal resident of Canada. If they are not, then the petition must be sent to a USCIS processing centre in the US.

http://www.amcits.com/immigration_usa_relative.asp

An I-130 petition for a CR1/IR1 immigrant visa filed in the US however once approved will be sent to the US consulate in Montreal for the visa applicant to be interviewed there. The intitial process is done in the US, but completed in Montreal. Is this what you are referring to as "consular processing"? Or do you refer to consular processing as the petition being sent directly by the US citizen to the US consulate in Canada?

Right, consular processing starts with an I-130 filed in the U.S. with CIS, but ends up in Montreal, instead of that person filing for adjustment of status and processing with CIS in the United States.

That I-130 however is *still* going to indicate immigrant intent, so when the OP goes to renew her TN, she may be denied the TN on that basis, and then denied entry until her CR1 is processed.