NAFTA TN Professionals and Marriage to a U.S. Citizen
Question: I am a Canadian citizen and work in the U.S. under NAFTA as a TN. I am now engaged to a U.S. citizen. What happens to my TN status once I get married? Can I renew my TN? How do I apply for my green card?
Answer: When a Canadian citizen working in the U.S. under TN status marries a United States citizen, the Canadian citizen still retains his or her TN non-immigrant status. There is no immediate change to your non-immigrant status. After your marriage, you become eligible for lawful permanent resident status (green card) as the spouse of a U.S. citizen. Once you have established eligibility for a green card based on marriage to a U.S. citizen, you will need to carefully consider an immigration strategy that will allow you to continue your work authorization in the U.S. during the green card application process.
TN Nonimmigrant Worker Must Maintain Bona Fide Nonimmigrant Intent.
A TN nonimmigrant worker must maintain bona fide nonimmigrant intent throughout the TN worker’s stay in the United States. The regulations provide that a TN applicant cannot intend to establish permanent residence in the U.S. and must satisfy immigration officials that the proposed stay is temporary and has a finite end. This means the TN worker must intend to depart the U.S. at the conclusion of the TN employment. At the moment a Canadian citizen applies for a new TN or an extension of or change to TN status, the applicant cannot intend to remain permanently in the U.S. after the TN is approved.
If an applicant is married to a U.S. citizen, immigration officials may deny admission or the extension of TN status under NAFTA because they believe that the applicant intends to remain in the U.S. permanently. Spouses of a U.S. citizen are exempt from the worldwide numerical limitations set for immigrant visas. They may therefore apply for a green card immediately without having to wait for an immigrant visa number to become available. This situation is distinguishable from TN workers filing for employment based green cards where an immigrant visa may not be available for several years due to backlogs. Because of this immediate access to a green card, immigration officials suspect that when a spouse of a U.S. citizen applies for a TN (initial or an extension), he or she intends to remain in the U.S. permanently after approval of the TN application. This may lead to a denial of admission to the U.S. under TN status or the denial of an I-129 change of status (“COS”) or extension of status (“EOS”) petition for a TN.
Green Card Solutions for TN Holders Married to a U.S. Citizen.
When a Canadian citizen working in the U.S. under TN status marries a United States citizen, and then wishes to file for lawful permanent residence (a green card), an immigration strategy needs to be developed to ensure continued admission to the U.S. and employment authorization during the processing of the green card application. The immigration strategy will need to determine whether the green card should be obtained by filing an application for adjustment of status or through immigrant visa processing. This decision depends upon the particular facts of each case and must take into consideration several factors such as the need for continued work authorization, the ability to travel during processing of the green card application, and alleviating risks of denial based on intent issues.
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