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Can I move from a TN visa to a green card?

By January 18, 2023Immigration, TN Visa
A man asking questions

The TN visa can be an excellent option for nationals of Canada or Mexico who want to work in the United States. To qualify, the applicant must have an offer of employment from a U.S. employer to work in a listed profession, and the applicant must be qualified to work in that profession. The list of professions and their related qualifications is published in the TN regulations at 8 CFR 214.6. For more information on the TN visa and its requirements, please see our earlier post here.

One of the common questions we receive is whether a TN visa holder can apply for a green card. The simple answer is yes – someone in the U.S. on a TN visa can apply for a green card. However, there are a number of issues that should be kept in mind, including timing. In this post, we discuss how a TN visa holder can pursue a green card, and several pitfalls to keep in mind.

Pathway One: Apply for a green card while in TN status

A TN visa holder can apply for a green card in the same way that any other individual can – by being sponsored by a family member (who would file a Form I-130) or by being sponsored by an employer (who would file a Form I-140). The TN visa holder is not given any particular advantage by virtue of being on a TN visa – in other words, the TN visa is not a visa that automatically “leads to” a green card, or that streamlines the process. The individual must qualify as a family relative or as a sponsored employee, just as any other green card application must. For more information on the bases for applying for a green card, see our posts here and here.

Rather than TN status giving the individual an advantage, the status creates a number of obstacles that the individual must navigate on their pathway to a green card, largely centered on issues of immigrant intent.

The importance of nonimmigrant intent when entering the U.S. on a TN visa

The TN visa is a temporary visa, meaning that someone entering the U.S. on a TN visa must intend to leave the United States at the expiration of their status. In other words, they cannot intend, at the time they are entering the U.S., to adjust status during that visit. To “adjust status” simply means to apply for a green card from within the United States. There are a few nonimmigrant visas that do allow dual intent, meaning that the visa holder can intend, at the time of entry, to adjust status and apply for a green card. Dual intent visas include the L-visa and H-1B visa. The TN visa is not a dual intent visa.

What if a TN visa holder is confident that they will eventually apply for a green card, but not on the immediate visit for which they are seeking entry? No problem – the question of intent applies to the immediate visit. The government does not expect you to disclose – or even to know – whether you might someday apply for a green card. Instead, they are asking whether you intend to apply for a green card during the immediate visit for which you are seeking entry.

What if the TN visa holder is confident, at the time of entry, that they will not apply to adjust status – but once they enter the U.S. and started working, an opportunity arises and they decide to pursue a green card. Does this violate the terms of the visa? Not necessarily. Those who read the earlier paragraph closely might notice that it is the visa holder’s intent at the time they enter the United States that matters. In other words, there is no prohibition on changing your mind. That being said, we always emphasize that it is critical to be honest when speaking with the government. Additionally, the act of applying to adjust one’s status within three months of entering can be used as evidence to show that the individual actually did misrepresent their intentions at the port of entry, which could have significant immigration consequences. However, if a TN visa holder honestly represents at the time of entry that theydo not intent to adjust status during the immediate visit, and if they then decide to pursue a green card at least a couple months after they enter, there is no prohibition on adjusting status while on a TN visa.

The importance of nonimmigrant intent when applying to renew the TN visa or extend TN status

TN visa holders must have nonimmigrant intent – meaning they must intend to leave the United States at the end of their stay in the U.S. and they must not intend to adjust status – both at the time they enter the U.S. and at any point at which they apply to renew their TN visa or extend their TN visa status. Since filing an application to adjust status clearly demonstrates that the applicant plans to adjust status and permanently remain in the United States, a TN visa holder risks denial of their TN visa renewal or extension of TN status if they previously filed an application to adjust status.

This is one aspect of the TN visa that previously made it impractical for a TN visa holder to adjust status. In the past, a TN visa was limited to one year. This made it difficult for the TN visa holder to enter the United States, wait a certain period of time that demonstrates that they did not misrepresent their nonimmigrant intent on entry, apply for a green card, and receive a decision on the green card application before they were required to renew the visa. Now, however, TN visas are commonly issued for three years, making the process far more feasible.

The option of consular processing

Green card applicants who are inside the United States have the option to apply for and receive their green card either from within the U.S. (called adjustment of status), or from a consulate (called consular processing). The process involves first submitting an application to USCIS (typically the Form I-130 or Form I-140), then, once that application is approved, filing the Form DS-260 application for a green card with the consulate.

In some cases, choosing consular processing could reduce the risk that the TN visa holder will be denied on the basis of having immigrant intent – after all, if they plan to leave the U.S. in order to receive their green card at a consulate, how can they possibly plan to remain in the United States permanently on the immediate visit? However, the government has been known to ascribe immigrant intent to individuals once the first step of the green card process is initiated and the I-130 or I-140 is filed with USCIS.

Pathway Two: Change status from TN to a dual intent nonimmigrant visa, then apply for a green card

The issues of nonimmigrant intent that apply to the TN visa and were described above do not apply to all visas. As mentioned before, certain visas are “dual intent,” meaning that they can be issued to individuals who plan to adjust status in the United States. Two example of dual intent visas that are particularly relevant to TN visa holders are the L-1 visa and H-1B visa.

Depending on the circumstances of the TN visa holder’s job, one of these two dual intent visas could be a good fit. Should the individual file an application to change status to one of these dual intent statuses, the individual would be able to remain in the United States, file and application to adjust status, and, while the application to adjust status is pending, renew their L-1 or H-1B status.

While this pathway adds an additional step – the step of applying to change one’s status from TN to a dual intent status – it allows the individual to avoid the pitfall of immigrant intent each time the individual applies to renew their TN status once the adjustment of status application is filed.

Conclusion

Regardless which pathway the TN visa holder chooses in pursuit of a green card, issues of nonimmigrant intent and timing will be critical to navigate. For this reason, an immigration lawyer can be particularly valuable for those moving from a TN visa to a green card.

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This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.

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