TN Visa Expired and I-485 still pending

Question: I'm a Canadian Citizen and live in the U.S. I applied for adjustment of status in June 22, 2007, while I had a valid TN1 Visa. I received the Interview letter from USCIS on November 13th. I went for the interview and everything seems to be ok. The only thing missing is the FBI Clearance, and they don't know how long this is going to take. My TN Visa has already expired. Do I have to stop working? Or can I apply for a TN1 renewal? What can I do so I won’t lose my job?

Answer: Technically, once your TN visa status expired, you no longer had authorization to work in the U.S. Filing an adjustment of status application in and of itself does not provide authorization to engage in employment. An individual needs to obtain independent means of employment authorization either through a temporary non-immigrant status (e.g., TN visa status) or through an Employment Authorization document. 8 C.F.R. § 274a.12 (c) (9).

A renewal of your TN is most likely out of the question. Since your TN visa status has expired, you cannot file an I-129 petition with USCIS for an extension. Generally, an extension of status petition must be filed prior to the expiration of a foreign national’s initial status. Departing the U.S. to apply for a TN at a land port-of-entry likewise fails as a viable option. In most situations, this conduct renders the AOS application abandoned. In either event, filing an adjustment of status application normally bars the attainment of a subsequent TN due to immigrant intent. Read: TN & Immigrant Intent. Your only option may be to file an application for an Employment Authorization Document, which you are eligible for based on your adjustment of status application. The problem here is that an EAD application can take up to 90 days to process.

The lack of the ability to work is not your only problem. Working without authorization can jeopardize your adjustment of status application. In most cases, INA § 245 (c) (8) bars from adjustment any foreign national who has engaged in unauthorized employment. There are two principle exceptions to this rule. First, the rule does not apply to immediate relatives (i.e., children, spouses, and parents) of a United States citizen. 8 C.F.R.  § 245.1 (b) (10). Second, under INA § 245 (k), periods of unauthorized employment totaling 180 days or less may be forgiven for purposes of an adjustment applications under the EB-1, EB-2, and EB-3 preference categories. (Note that unauthorized employment is counted from the time of admission until the I-485 adjustment application is approved. AILA/NSC Liaison (April 12, 2007)).

Therefore, if you are an immediate relative of a U.S. citizen, you may not face a bar to adjustment of status based on unauthorized employment. If you are not an immediate relative, and you've filed for your green card under the first, second, or third employment-based preferences, then INA § 245 (k) provides you with limited protection for any unauthorized employment performed from the date your TN expired up to 180 days. If INA 245 § (k) does apply to your case, an issue to look at is whether you will be able to obtain an EAD before you surpass the 180 day limit. Regardless of these exceptions to the rule against unauthorized employment, your situation may cause concern for your employer. Neither provision offers protection to an employer who may be liable for employer sanctions for continuing to employ an unauthorized foreign national.

One problem you do not need to worry about is accumulating unlawful presence. Generally, a foreign national who remains in the United States beyond the authorized period of stay (e.g., after expiration of an I-94) is unlawfully present and becomes subject to a three (3) or ten (10) year bar to admission to the U.S.  INA § 212(a)(9)(B). USCIS has designated the period of time an adjustment of status application is pending as an "authorized period of stay." As result, a foreign national does not accrue any unlawful presence during the pendency of an adjustment application.

Considering the complexity and precarious nature of your case, it is recommended that you consult with an immigration attorney in order to have your case properly evaluated and to receive a comprehensive strategy to deal with the immigration issues you are facing.