As part of the North American Free Trade Agreement (NAFTA), nationals of Canada or Mexico can work in the United States through the special TN visa classification. Many of these NAFTA professionals build connections and form relationships with Americans that could end up in marriage. The TN visa is not a "dual-intent" visa. This means changing status to a green card after marrying a U.S. citizen or lawful permanent resident can be tricky, but it is still possible. This article explains how to get a marriage green card if you have a TN visa and some considerations to bear in mind.
Written by Jonathan Petts.
Written May 25, 2022
How to change your status from TN visa to marriage green card
There are two different application pathways to changing your status to a marriage green card - adjustment of status and consular processing. Within these two pathways, there are differences depending on your spouse’s immigration status.
Adjustment of status
For adjustment of status, you need to be aware of the 90-day rule. In addition, your eligibility to adjust status will depend on whether your spouse is a U.S. citizen or lawful permanent resident.
People who enter the United States with nonimmigrant status must be careful not to paint themselves as dishonest about their reason for traveling to America. Generally, if you start applying for immigrant status less than 90 days after you arrive in the United States, immigration officials will conclude that you lied about your original intentions for being in the country. Because of this, it's essential to know whether your nonimmigrant status qualifies for "dual intent."
Qualifying for “dual intent” means a person with nonimmigrant status located in the United States can stay and apply for permanent residence. They can have nonimmigrant intent and immigrant intent at the same time. This is allowed, even though the person entered the United States on a nonimmigrant visa. Immigration law allows specific visa categories, such as the H-1B visa for workers with a bachelor’s degree, to have “dual intent.”
Unfortunately, the TN visa status does not allow for “dual intent.” This makes adjustment of status risky for Canadian citizens or Mexican citizens with this visa. If you start a green card application as a TN nonimmigrant visa holder, you could lose your TN status. Without TN status or any other status, you’ll accrue unlawful presence if you remain in the United States. U.S. Citizenship and Immigration Services (USCIS) may return you to your home country in that case.
To avoid losing your TN visa holder status, you should follow the 90-day rule. Immigration officials use the 90-day rule to determine whether you were honest about your original nonimmigrant intent. If you apply for a green card within your first 90 days after entering a U.S. port of entry, the government will assume that your TN visa application was dishonest. They will think you intentionally planned to come to the United States to immigrate, not to work temporarily. Instead, you should wait at least 90 days to file an immigrant petition. After that, the government will be more likely to think that your intentions changed, but you were not originally misrepresenting your plan to work temporarily.
If you're married to a U.S. citizen
After waiting at least 90 days since arriving in the United States, you’ll be ready to apply for your marriage green card. If your spouse is a U.S. citizen, you will follow the same process for adjustment of status as any spouse living in the United States who is married to a U.S. citizen. You and your spouse will file these forms together (you can file the forms separately, but that is not typical):
Form I-130, officially named “Petition for Alien Relative” and known as the family member sponsorship form, which your spouse must complete and sign
Form I-485, officially named “Application to Register Permanent Residence or Adjust Status” and known as the green card application form, which you must complete and sign
After you file these forms, you can stay in the United States even after your TN visa expires. You can also apply for work authorization to continue working and an "advance parole" travel document to travel outside of the United States while USCIS processes your application.
As long as you follow the 90-day rule, USCIS will believe you married your spouse "in good faith" and not just for a green card. You should receive your green card within 10 to 13 months of USCIS receiving your application.
If you're married to a permanent resident
If your spouse has a green card, you can apply for a green card through adjustment of status or consular processing. But, timing is everything, and it will depend on when a green card is available for you.
First, you will need to file Form I-130, officially named "Petition for Alien Relative." Form I-130 is also known as the family member sponsorship form. Once USCIS approves your form, you will have to wait for a visa number to be available before applying for the green card.
If a visa number becomes available before your TN visa expires, you can stay in the United States and apply for a green card through adjustment of status.
When you receive your visa number, You will follow the typical process for a spouse of a green cardholder. You should file Form I-485, officially named "Application to Register Permanent Residence or Adjust Status," known as the green card application form. If all goes well, you should receive your green card in 29 to 38 months. In the meantime, you can also apply for a work authorization to continue working and an "advance parole" travel document to travel outside of the United States.
Suppose a visa number only becomes available after your TN visa expires. In that case, you will have to return to your home country and apply for a green card through consular processing.
A safer option for obtaining a marriage green card if your spouse is a green card holder is consular processing. You will return to your home country for the interview and medical examination. Therefore you don't have to worry about the 90-day rule. However, you can't stay in the United States or apply for U.S. work authorization if your TN visa expires before your green card is ready. You also can’t extend your TN visa while your consular green card application is pending. Both of these have implications that you should consider seriously. Ultimately, you should consult an immigration lawyer or law firm for legal advice about whether adjustment of status or consular processing is a better option for you.
The nature of your consular application process will again depend on whether you are married to a U.S. citizen or lawful permanent resident.
If you're married to a U.S. citizen
You will follow the typical process for the non-U.S. based spouse of a U.S. citizen.
First, you will file Form I-130 ("Petition for Alien Relative"). After your I-130 approval, you will pay your fees and file Form I-864, DS-261 and DS-260, the immigrant visa application, to the National Visa Center.
From there, the National Visa Center will send your application to a U.S. consulate or U.S. embassy in your home country. You will have to complete a medical examination and attend a consular interview.
The entire process will usually take 11 to 17 months. You will only have to return to your home country for the interview and medical examination. However, if your TN visa expires while waiting for your immigrant visa processing, you will have to stay in your home country till you have your green card.
If you're married to a permanent resident
You will follow the process for spouses living abroad and married to a green cardholder. First, your spouse will submit Form I-130 on your behalf. Then, you’ll have to wait for your “priority date'' to become current before you can file the rest of your green card application.
When your “priority date” becomes current, you’ll receive a notification. Then, you’ll be in the clear to file Form DS-260, the immigrant visa application, online. If you’re still working in the United States on your TN visa, you will have to return to your home country for your medical exam and consular interview.
The entire process will usually take 23 to 32 months. However, if your TN visa expires while waiting for your immigrant visa processing, you have to return to and stay in your home country until USCIS makes a decision on your case.
When applying for a marriage green card with a TN visa, it is crucial to consider the new requirements for your employment authorization and international travel plans.
After you file for your green card, you can continue working with your TN visa status. However, with your green card application filed, you have now indicated your intent to immigrate to the United States. Therefore, you cannot renew your TN visa or apply for a new TN visa with a different U.S. employer because it’s for people who intend to be in the country for only a short period.
Instead, you should get work authorization while filing for a green card. You should include Form I-765, “Application for Employment Authorization,” with your green card application. When U.S. Citizenship and Immigration Services approves your Form I-765 application, you’ll get an Employment Authorization Document (EAD). This permits full-time and part-time work and also allows you to work for other employers. USCIS will generally approve your employment authorization within 90 to 120 days of your application.
One disclaimer - after you file Form I-130, you should be careful about traveling abroad if you are applying for adjustment of status. You are now showing intent to immigrate. This goes against your TN visa and could cause a U.S. Customs and Border Patrol (CBP) officer to deny you re-entry into the United States.
Before you leave the United States, you should obtain an advance parole document. You can file Form I-131, “Application for Travel Document,” along with your adjustment of status application. Generally, USCIS will approve your advance parole request within 120 days of your application. Once approved, your employment authorization card should display your advance parole approval.
If you are applying for a green card through consular processing, you can freely leave and re-enter as necessary, for as long as your TN visa remains valid.