Immigrant Visa Issued to TN Visa Professional – Marriage to U.S. Citizen

I-130 Petition Filed at U.S. Consulate in Toronto and Overcoming Sponsor’s Failure to File U.S. Income Tax Returns.


The Applicant, a citizen of Canada, and his U.S. citizen wife had resided in Canada for several years. In December 2006, we filed an I-130 Petition for Alien Relative on behalf of the wife to sponsor her husband for permanent residency. We indicated in the I-130 petition that the Applicant would apply for his immigrant visa abroad at the U.S. consulate in Montreal. Because they resided in Canada, we filed the I-130 petition at the U.S. consulate in Toronto. Petitioners who reside in Ontario may file an I-130 with the U.S. Consulate in Toronto rather than with the USCIS Service Center when both parties lawfully reside in Ontario. Instructions for Filing I-130 in Toronto. The Applicant attended his appointment at the Toronto Consulate. After reviewing the I-130, the Consulate informed the Applicant that the petition was approved and it would forward it to the Consulate in Montreal for immigrant visa processing.

Shortly thereafter, the Applicant received an offer to work in the U.S. The Applicant and the position offered qualified for TN visa status. Because the I-130 petition indicated that the Applicant would pursue his green card through immigrant visa processing, this minimized the risk of immigrant intent allegations. See TN Visa & Marriage to USC. U.S. Customs and Border Protection approved the TN application for a one year period.

Bumps in the Road I: Surprise Record Checks.

However, in January 2007, the Department of State announced that the Adam Walsh Child Protection and Safety Act precluded U.S. Consulates from accepting new I-130 petitions. DOS Cable – Adam Walsh Act. Section 402 of the Adam Walsh Act renders an individual ineligible to file a petition for immigrant status or for nonimmigrant K status if convicted of a “specified offense against a minor.” If the consulate had already accepted an I-130 petition, it now had to forward the petition to USCIS in order to run additional criminal checks to determine whether the petitioner had a conviction for a specified offense against a minor. (Subsequently, the DOS and USCIS have developed a mechanism where USCIS will perform these required “Adam Walsh Act” checks for any I-130 petitions accepted abroad by consular officers). In February 2007, the Applicant’s I-130 petition was forwarded to USCIS and the additional checks were completed in March 2007. Our office received the immigrant visa processing package (Forms DS-230) and submitted the completed file to the Consulate in Montreal in June 2007. Because of a back-log at the Consulate, we were informed that it would take 4-6 months to schedule an IVP appointment.

Bumps in the Road II: Affidavit of Support Issue.

An Affidavit of Support, Form I-864, is required for most family-based immigrants and some employment-based immigrants to prove that they have adequate means of financial support and that they are not likely to become a public charge. A green card sponsor must prove that she has enough income and/or assets to maintain the intending immigrant and the rest of her household at 125 percent of the Federal Poverty Guidelines. Generally, proof of income must be established by submitting a copy of the sponsor’s most recent U.S. income tax return. Adjudicator’s Field Manual § 20.5 (i) (1).

However, the Applicant’s wife did not file U.S. tax returns during the time she resided in Canada. Unbeknownst to her, United States citizens living abroad are generally required to file annual U.S. income tax returns). If a green card sponsor did not file U.S. income tax returns during any of the three previous tax years, she must retroactively file the late tax returns with the IRS and submit to the Consulate an IRS generated tax return transcript. Adjudicator’s Field Manual § 20.5 (i) (1). While pay stubs and letters of employment are no longer required for the I-864, we included both of these items in the I-864 submission to help establish that the sponsor met the governing income threshold. Adjudicator’s Field Manual § 20.5 (i) (2).


The Applicant’s IVP appointment was scheduled for October 2007. He attended the interview and presented the requisite documents along with the I-864 submission. His application was approved without complication and he received his immigrant visa a few days later.