Question: I am a Canadian citizen born in the Philippines.I qualify under the green card category for schedule A group I for registered nurses. My TN visa will expire on Sept. 2008. My employer is willing to sponsor me but I am afraid to go on with it because of the retrogression. My TN visa might expire before the AOS can be filed because an immigrant number is still not available. Would it be better to wait for the three year validity which would probably take effect before Sept. 2008 when my TN visa expires? What is the best thing to do in the current retrogression situation?

Answer: I would not let the unavailability of an immigrant visa number deter you from pursuing a green card. First, adjustment of status, and the subsequent inability to renew TN status after filing for AOS, is not your only route to a green card. When your employer files the I-140 immigrant worker petition, it may indicate that you will pursue your green card via immigrant visa processing. This strategy may allow you to continue to renew your TN status until an immigrant visa number becomes available. In the event you chose to pursue adjustment of status down the road, this option allows you to file the AOS application without the burden of filing an I-824 application requesting the change in procedure. If the I-140 petition indicates that you will pursue your green card through adjustment of status, you cannot then seek to file for immigrant visa processing without first filing an I-824 application requesting the change.

Second, in the past, Congress has passed legislation providing for a special allotment of immigrant visa numbers for Registered Nurses. Due to the continual shortage of RNs in the U.S., it is possible that Congress will make another allotment of visas available. By having your I-140 petition filed you are able to secure your place in line, not only in terms of the regular allotment of annual visas, but potentially with respect to any future allotments set aside by Congress specifically for RNs.

I do not recommend basing any immigration decisions on the prospect of the Department of Homeland Security extending TN visa status validity to a three year period. While DHS may be in the process of examining this possibility, it is by no means certain to come to fruition.