As part of the green card application process, a TN visa worker married to a U.S. citizen may apply for a green card without leaving the U.S. if he/she meets the Adjustment of Status (AOS) requirements.
History of Adjustment of Status
Previously, individuals who sought to obtain U.S. permanent residence were required to leave the country, obtain an immigrant visa, and seek reentry to the U.S. as immigrants (i.e. Immigrant Visa Processing).
In 1935, the legacy INS took steps to ameliorate this process and began to pre-exam green card applicants in the U.S. prior to the issuance of an immigrant visa at a U.S. consulate in Canada.
In 1952, Congress enacted INA § 245, which permitted individuals to complete the green card process from within the U.S. and avoid applying for an immigrant visa at a U.S. consulate.
Although AOS was originally envisioned as a rare exception to the general practice of requiring an immigrant visa through a U.S. consulate, more individuals now gain permanent residence through Adjustment Of Status than through Immigrant Visa Processing. AFM § 23.5 (a).
Basic AOS Requirements
To qualify for Adjustment of Status, a TN visa worker must meet the following:
Have been inspected and admitted to the U.S. under lawful non-immigrant status (e.g. TN visa status).
Be eligible to receive an immigrant visa (e.g., based on marriage to a U.S. citizen and the filing of an I-130 petition).
Not be inadmissible to the United States under INA § 212 (a) (e.g. due to criminal records or immigration violations) or has received a waiver.
Have an immigrant visa immediately available at the time of filing of the application. (Individuals married to U.S. citizens are classified as "immediate relatives," and will always meet this requirement because such applications are not subject to annual quotas.)
AOS Restrictions / Ineligibility
The law restricts or makes ineligible some individuals from applying for AOS due to the manner in which they entered the U.S., or based on their actions after entering the U.S.
Those most applicable to TN visa workers involve restrictions for the following. Individuals applying for green cards based on marriage to a U.S. are exempt from many of these restrictions. Exemptions are marked with an *.
Individuals who were not lawfully admitted or paroled to the U.S. following inspection by an immigration officer.
Individuals who were employed in the U.S. without authorization prior to filing their AOS application.*
Individuals who were not in lawful immigration status on the date of filing their AOS application.*
Individuals who failed to maintain continuously lawful immigration status since entry into the United States.*
Individuals who were ever employed in the U.S. without authorization or who violated the terms of their nonimmigrant visas.*
Individuals subject to the J-1 visa 2-year home residence requirement unless they have obtained a waiver.
Individuals seeking green cards based on family sponsorship who do not have an approved I-130 petition. (The I-130 petition can be concurrently filed with AOS applications in some cases.)
Individuals seeking a green card based on a marriage that occurred while they were in removal proceedings unless certain exemptions apply.
TN visa workers generally should provide the following with their I-485 AOS application (additional items may be required):
Proof of TN visa status: I-94, I-797, pay stubs, etc.
Copies of documents may be submitted initially, but originals of these documents may be required during the interview.
USCIS’ Exercise of Discretion
Under the INA, the approval of an AOS application is not only dependent on meeting the statutory requirements for AOS, but the applicant must also demonstrate that his/her application merits a favorable exercise of the government’s discretion.
In exercising discretion, the adjudicator will take into account all known positive (favorable) factors and negative (unfavorable) factors. Positive factors may include the unification of the family; meeting the needs of American businesses; or humanitarian factors.