What is the Process of Changing Status from a TN Visa to a Marriage-Based Green Card?

If you reside in Mexico or Canada and want to work in the U.S., you can apply for a TN Visa. It allows Mexican & Canadian citizens who have received a job offer to work in the U.S. and want to professionally engage in business activities on a temporary basis.

It gives expedited admission to business persons from each country to live & work legally in the U.S. However, some individuals marry a U.S. citizen or a Green Card Holder while working on TN Visa in the U.S.

In this blog, we will walk you through the process of converting your TN Visa status to a Marriage-Based Green Card.

90-Day Rule

Suppose you marry a U.S. citizen or a Green Card Holder & apply for a Marriage-Based Green Card within the first 90 days of entering the United States. In that case, the U.S. Government may assume that you have deliberately misrepresented your reasons for entering the U.S.

When you enter the U.S. on TN Visa, you intend to leave before visa expiration. Your purpose is not to migrate to the U.S. permanently. You are here to work temporarily under TN Visa terms.

However, if you intend to permanently migrate to the U.S. and apply for a Green Card within 90 days, your Green Card Application may be rejected, and your TN Visa will be revoked. You will be asked to go back to your country.

To avoid this situation, there is a 90-Day Rule used by Immigration Officers of USCIS to ascertain the intention of a Green Card applicant by matching it with their original reasons for traveling to the U.S.

Though you will be able to convince USCIS Officers, it can be challenging.

It is highly recommended to apply for a Green Card, including Marriage-Based Green Card, after 90 days of entering the U.S. The USCIS office may presume that your intentions or situation changed after entering the country and that you are not purposefully misrepresenting your intentions of coming to the U.S.

To Determine the 90-Day Rule, we recommend checking your I-94 Travel Record (Form of Arrival/Departure Record) to locate the date of your most recent entry to the U.S. and add 90 days to it. E.g., suppose your entry date is 1st January 2023; 90 days later will be 1st April 2023.

Paths for Obtaining a Marriage-Based Green Card

If you are living & working in the U.S. and marry a U.S. citizen or a Green Card Holder, you can apply for a Marriage-Based Green Card through Adjustment of Status (AOS) and Consular Processing.

Adjustment of Status is an extensively used process by applicants in the U.S. In this option, your application is handled by USCIS, allowing you to finish the process from within the U.S. You can apply for a work permit to lawfully work in the U.S. if your TN Visa expires before receiving Marriage-Based Green Card.

Consular Processing is used by applicants applying from outside the U.S. (their home country). In this option, the application is handled by your home country's local U.S. Embassy or Consulate office, where you must appear for a medical examination & interview at the consular/embassy office.

There are three primary paths for changing your status from TN Visa to a Marriage-Based Green Card, which is as follows:

Path 1: Marries a U.S. Citizen and uses AOS

In this scenario, when you are marrying a U.S. citizen and using AOS for a Marriage-Based Green Card, the procedure is similar to that followed by other spouses living in the U.S. & married to a U.S. citizen. You & your spouse must file the following forms simultaneously:

• Green Card Application Form (Form I-485) to be filled & signed by you (TN Visa Holder)
• Family Sponsorship Form (Form I-130) to be completed & signed by the U.S. citizen spouse

After filling out & submitting your AOS application, you can live & work in the U.S. till your TN Visa expires. You can apply for a work permit & "advance parole" travel document after Visa expiration to work legally in the U.S. and travel outside the country till you receive your Marriage-Based Green Card.

Path 2: Marries a U.S. Citizen and uses Consular Processing

It is a path widely used by applicants residing overseas & can apply for a Marriage-Based Green Card from within the U.S. or their home country. However, the applicant must return to their home country for medical examination and interview at their local U.S. Embassy or Consulate Office.

In this scenario, you don't have to worry about the 90-Day Rule, and it is the safest way to change your status from TN Visa to a Marriage-Based Green Card. Here, you will rule out the possibility of deliberately obtaining a Green Card by misrepresenting your intentions.

Unlike AOS path applicants, Consular Processing can't stay in the U.S. or get employment authorization if their TN Visa expires before receiving their Green Card. The process is similar to that followed by U.S. Citizen's spouses living abroad:

• Family Sponsorship Form (Form I-130) to be completed & signed by the U.S. citizen spouse
• After Form I-130 approval, the visa application is transferred to the National Visa Center (NVC). You must pay the required fees, file Form DS-260 online, and file your supporting documents to the NVC.
• Your Green Card Application is passed on to your home country's U.S. Embassy or Local Consulate Office. You will receive the time & date for your Consular Office Interview.
• You must undergo a Medical Examination conducted by a certified physician before the interview.

The entire process takes months to a few years to be completed & processed, and you will need to leave the country after the TN Visa expiration to return to your home country for Consular Interview.

There are chances of an application getting approved spontaneously during the interview. And you might receive a request for evidence to submit additional documents or call for a follow-up interview. You must stay in your home country till you receive the final approval.

Path 3: Marries a Green Card Holder

If you're married to a Green Card Holder, you can apply for a Marriage-Based Green Card through AOS or Consular Processing. In both processes, you must file Family Sponsorship Form (Form I-130). And once USCIS approves it, you will receive a Visa Number indicating your Green Card availability.

Note: Visa Numbers are available immediately to U.S. Citizen's spouses than Green Card Holders.

If you receive your Visa Number after the TN Visa Expiration date, you'll be required to return to your home country & complete the remaining process via Consular Processing.

If you receive your Visa Number before the TN Visa Expiration date, you may complete the Green Card application process via AOS by staying in the U.S.

If you apply via AOS, the procedure is similar to that of other spouses living in the U.S., And you must file Form I-485. Though the process is lengthy, you can stay & work in the U.S. by applying for a work permit to ensure working is intact after your TN Visa expires.

If you apply via Consular Processing, the process is similar to that followed by U.S. Citizen's spouses living abroad, which we mentioned in Path 2.

Conclusion

After reading the blog, you will have firm clarification about the 90-Day Rule and the three paths for changing your status from TN Visa to a Marriage-Based Green Card. You can follow any of the mentioned routes according to your convenience and TN Visa expiration date. However, if you have questions, feel free to contact us.

At Salinas Law Firm, we have highly qualified & professional TN Visa & Immigration Lawyers, proficient in handling challenging to complex cases to help clients change their status to a Marriage-Based Green Card.

Our Immigration Visa Attorneys stay connected with you throughout the process, from fulfilling eligibility criteria and gathering documentation to doing paperwork and the interview process. We aim to simplify the procedure to help you obtain your Marriage-Based Green Card. For a consultation with our Visa Attorney, contact us at 713.518.1711.