TN Visa with American spouse

[leoy]

I currently live in Toronto and my wife is an American citizen. I have received a job offer in the US and the potential employer will send me a letter I can use to get a TN visa.
The question is, will the fact that my wife is American disqualify me from getting a TN visa? Does my wife need to come with me to get the visa?
Any help is appreciated.

[Steven]

Yes it does disqualify you because USCIS won't believe you have "non-immigrant intent" if your wife is American, and you must have that if you are on TN-1. I suppose you could just show up at the border on your own and not mention your wife but technically it's illegal because you're misrepresenting yourself to USCIS.

If you're married to an American the more permanent solution is for her to file an I-130 for you and sponsor you, but that takes the best part of a year to be approved. She will need to be up-to-date on her tax returns with the IRS in order to be able to do that, as US citizens must file a 1040 every year regardless of where they reside (and the immigration application requires this). If she's never filed one (e.g. dual-citizen and never lived in the US) then the IRS usually require seven years worth of returns and she needs to get a social security number first.

The snag is that if this really is a temporary job and you plan on coming back, once you're an LPR in the US it's not a good idea to come back until you have stayed long enough to qualify for US citizenship (because you will lose LPR status when you move back, and getting it again is very hard). Plus you must as an LPR move your tax home to the US which is a problem if you don't plan on staying for long.

The only bright spot is if you're married to a US citizen, you only have to wait three years to get citizenship rather than five.

The taxes are a major pain because US law requires married couples to file jointly, although if you're there in a non-immigrant category I think you can file as a non-resident and she files as a resident.

In addition, if you become a US citizen then move back to Canada at some later point, there is a limit on the foreign tax credit for non-resident US citizens, which last year was $87,500 - i.e. if you earn over that amount in Canada, that amount will be subject to dual taxation.

Have a read of IRS publication 519.

[leoy]

Thanks Steven. Actually my friend just got his TN successfully eventhough his wife is american. She was even with him at the time.

[Steven]

I have to say I'm surprised by that, there have been people on here who've been denied entry simply because they were visiting the US with a citizen spouse, let alone TN-1. Depends on who you get, of course.

[Reba]

Depends what the spouse's residency is though. If the spouse has LPR status in Canada, and the couple shares a home in Canada, there's more evidence of non-immigrant intent.

[Steven]

Legally I don't see how it's possible. If you're married to an American, she has to file as a resident taxpayer if she's living in the US, there's no other way of doing it if she's there for more than six months. I suppose the IRS might believe she's non-resident even living in the US if there are significant residential ties abroad but only up to a point, and I reckon that point will be the 183-day rule.

If she's filing as a resident and you're married to her, you have to file jointly, so you're filing as a resident and you have a residential tie - your spouse, so you don't have non-immigrant intent.

Visiting is one thing but actually having some sort of residence there and having a job would be impossible, I think, from a legal standpoint, if you're married to an American, unless you're there less than six months. And in following years it would be less than six months, given the way the "significant presence" test works.

Which is not to say the USCIS agent who deals with the application at the POE is going to be an expert on the law, so I can see how it could happen but I wouldn't say it's a certainty, depends on who you get.

[leoy]

I just asked my friend how he did it. He said that at the interview, the border officer even told him that he can apply for a green card as soon as he wants, since his wife is American.

[Steven]

All I can tell you is what the law is, not how they're going to enforce it!