ADJUSTMENT OF STATUS APPROVED FOR TN VISA WORKER – GREEN CARD BASED ON MARRIAGE TO U.S. CITIZEN

The applicant in this case, a Canadian citizen, was working in the U.S. for several years under TN visa status. During the validity period of his most recent TN visa, he married a U.S. citizen. He then contacted our office for advice on how to obtain Lawful Permanent Residence in the U.S. (i.e. a Green Card).

Generally, an individual has two options to obtain a Green Card based on marriage to a U.S. citizen: (1) Immigrant Visa Processing, which involves filing an I-130 petition with USCIS, and then filing an Immigrant Visa Application with the U.S. consulate; or (2) Adjustment of Status (AOS), which involves filing an I-130 petition and I-485 application for AOS with USCIS. (A third option, a K-3 visa, is also available, but is not frequently used).

When an individual is already present in the U.S. under authorized immigration status, proceeding under the AOS option may be appropriate if the applicant satisfies the statutory requirements for AOS under INA § 245 (a).* In addition, the applicant must demonstrate that his/her application merits a favorable exercise of the government’s discretion. INA § 245 (a). More on AOS.

In this case, the applicant had met the statutory requirements for AOS under INA § 245 (a). We therefore only needed to assess whether any negative factors existed that would give USCIS a basis to not exercise its discretion in the applicant’s favor. In exercising this discretion, the government has previously denied AOS applications if the applicant had a preconceived intent to enter the U.S. under a temporary visa classification (like the B1/B2 visa, F-1 visa, or TN visa) and then remain permanently in the United States. See, e.g. Jain v. INS, 612 F.2d 683 (2nd Cir. 1979); Matter of Ro, 16 I. & N. Dec. 93 (BIA 1977).

The applicant obtained his most recent TN visa status several months ago. At the time of his obtaining the TN, he did not manifest any intention to enter the U.S. under his TN and then immediately marry his U.S. citizen girlfriend and seek Lawful Permanent Residence in the U.S. Based on this, and on Department of State guidance, we believed USCIS would not consider the applicant’s filing of an AOS application as an indication of preconceived intent. See 9 FAM § 40.63 N4.7-4 (no presumption of preconceived intent if AOS filed more than 60 days after entry).

Nevertheless, even if the government had alleged the applicant had a preconceived intent when entering the U.S. under TN visa status, we were confident in our ability to establish his eligibility for AOS. Where the preconceived intent is the only negative factor in an application for AOS, the application may still be approved where it is based on marriage to a U.S. citizen. See Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Battista, 19 I&N Dec. 484 (BIA 1987).

As his case did not involve any other adverse factors, we believed the applicant was a strong candidate for AOS, and recommended this course of action. Our office prepared the applicant’s I-130 and AOS paperwork and filed the application with USCIS, which approved the application without issue.

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* Other factors to be considered, which are beyond the scope of this article, include employment authorization and travel requirements.