Here is a summary of everything you wanted to know about applying for AOS in EB category while on a TN:
Beware that this post is over 15 pages long (when printed), so hang in there, keep reading....But when you're done you should be a lot more informed about the process than you ever wanted to be.
Preamble:
I am not a lawyer, nor am I a self-proclaimed expert on every immigration issue, but rather this post is just a summary of the research that I have collected over the few years that it took for my case to be approved, and what I have documented here, I know to be true, not only from my personal experience but by the experiences shared by others as well. When I first started my case in 2000, there were very few sources that I could turn to in order to understand the process of filing AOS from TN status. Very few people thought it was possible, much less legal, and very few lawyers were aware of the pitfalls. The lawyers who knew the “tricks of the trade” charged an arm and a leg for their services. Many people on this forum were convinced that I was breaking the law, in some shape or form, and that my case would inevitably be denied. Having no support system, except my trusty lawyer, my stress level went up since I could not corroborate his statements anywhere in a coherent manner that was NOT written in legalese. At times it got me depressed and scared, that maybe the others were right and this also drove me to find out the truth. They were wrong, but by goal is not to claim revenge, but rather provide a place for people in a similar situation to turn for information, to educate those that blatantly and blindly claim one cannot apply for AOS from TN status, and at minimum, support those that are embarking on this journey to show them that this is in fact legal, and of course possible. I have collected supporting memos and quotes should the need arise to “convince” an uninformed lawyer or two as well. I offer you this free advice. Do with it as you will.
Many people, even many qualified lawyers are under the wrong impression that a person in TN status cannot file for Adjustment of Status, simply based on the fact that TN status does not allow for dual intent. (See Quote #5 in Appendix C below) All this really means is that once a person in TN status has shown clear immigrant intent, they are no longer eligible to obtain or renew their TN and TD status. Another misconception is that an I-140 shows clear immigrant intent. This has been confirmed to be untrue by both the former director of INS and the Nebraska Service Center, since an I-140 is filed by the COMPANY, and not the beneficiary. (See appendix C below for all relevant quotes, especially quote #1) Only a pending I-485 shows clear immigrant intent, therefore once you have filed an I-485, you are no longer eligible for TN status. To this point, many people ask what happens to their TN status once the I-485 is filed. The following pages explain this in greater detail, but as a summary, this is what you should know:
Once the I-485 is filed, you will remain in TN/TD status until one of the following happens:
a) Your TN expires. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
b) Your spouse or children’s TD expires but your TN has not. They are now in AOS Pending status, depending on which one expired. They should use their EAD and AP accordingly.
c) You leave the US and reenter using your AP (NB: you cannot reenter using your TN). You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
d) Either your son/daughter or your wife leave the US and reenter using their AP, but you are not with them on the trip. They are now in AOS Pending status. They should use their EAD and AP accordingly. You are still in TN status.
e) You use your EAD to work at a different job, or at a secondary job. You and your family are all in AOS Pending status now. Use your EAD and AP accordingly.
f) Your spouse uses her EAD to work. She is in AOS Pending status now. (S)he should remember to use her AP instead of her TD when traveling. You are still on TN status.
g) You present your EAD to your current employer and file a new I-9. You and your family are all in AOS Pending status now.
h) You get laid off or quit without a new job lined up. You and your family are all in AOS Pending status now. Your family needs to use their EADs accordingly, and you all need to use an AP to travel instead of your TN/TD.
i) Your I-485 gets approved together with your family. You are now in permanent resident status. You and your family will use their Green Cards to travel.
j) Your I-485 gets denied. You and your family are out of status. Your TN is not valid. Your EAD is not valid. Your AP is not valid. Your lawyer should file a MTR ASAP, or if not then you should leave the US immediately.
Overview: TN -> PERM -> I-140 -> I-485+EAD+AP -> GC -> US Citizen
Stage 1: PERM
1) You need to file for PERM if you don't qualify for EB1 (i.e. Employment Based 1st Preference), most people don't qualify for EB1. If you feel you qualify for EB1 and you want to skip PERM, then get a lawyer's opinion, the process of proving that you qualify for EB1 is not always straightforward. After filing PERM keep renewing your TN as you normally would either via mail, or at the POE / PFI. You can continue to travel and work using your TN at this stage. You can guesstimate that it would take 12-18 months to get your PERM approved, plus the time it takes to put any required job postings prior to filing PERM (an additional 3-6 months). Under the new regulation, an approved Labor Certification will expire after 180 days if an I-140 is not filed to proceed with the case. Some folks feel they need to wait to file for the I-140 until the I-485 priority date is current. There is really no advantage to waiting. In fact I recommend filing the I-140 ASAP after your perm is approved, and I will mention this in more detail in the following steps.This guesstimated timeframe is very specific to the current load when you file your PERM, in addition to any specific issues that may arise with your case, so it is very subject to uncertainty.
Stage 2: PERM -> I-140
2) After the PERM gets approved, file your I-140. Do not file your I-485 concurrently. (Only avoid concurrent application if you are unsure of your I-140
