NIW Green Card Approval for TN Visa Worker

The applicant in this case was working for a U.S. government agency under the TN visa category for Biologists. She contacted our office to discuss the possibility of filing an application for lawful permanent residence (i.e. a green card).

Following a review of her position at this U.S. agency, we determined that her work in microbial community analysis and bacterial taxonomy research was of national importance. We also believed that this individual’s prior research had made a significant impact to this field. As such, we considered her a strong candidate for a green card under the Employment-Based Second Preference category (EB-2) as an individual whose services are in the national interest (National Interest Waiver).

The advantage of a National Interest Waiver green card application is that it avoids the PERM labor certification process, which requires employers to first test the U.S. labor market to confirm there are no available U.S. workers for the position. Not only can the PERM process delay a green card application (26% audited in 2012), if there are any qualified U.S. workers for the position, the green card application cannot go forward.

As the TN visa classification has a temporary entry requirement, we had to carefully assess the potential effect a green card application filing might have had on this individual’s TN status. The applicant’s TN status was valid until July 2013, and so we expected that this type of green card application would be completed before she would have had to renew her TN visa status. We filed an I-140 petition for this individual under the National Interest Waiver program in April 2011.

Although we could have filed an I-485 application for adjustment of status (AOS) at the same time, we choose not to in case the government contested the applicant’s eligibility for a National Interest Waiver. Had we filed the AOS application concurrently, and USCIS denied the I-140 petition, the applicant could have faced complications when renewing her TN visa status. The filing of an AOS application is considered a significant sign of immigrant intent, and immigration officers may not approved a TN application after the filing of an AOS application.

USCIS approved the applicant’s I-140 petition in October 2011. After assessing her eligibility for AOS, ensuring that the applicant had no upcoming travel needs, and verifying that the applicant would not face any gap in employment authorization, we recommended filing for AOS. We filed the AOS application in December 2011. The applicant received her employment authorization and travel authorization in February 2012. USCIS approved the application in March 2012.