PERM-based Green Cards: A Timing Strategy for TN Visa Holder

Joe Zhou

An Introduction to TN

TN is a special nonimmigrant visa category exclusively for Canadian and Mexican citizens. (This article applies to citizens of both countries, but focuses on Canadians.) Unlike the more common H-1B visa classification, the TN category is open only to Canadian and Mexican citizens who are members of certain pre-designated professions such as accountants, architects and engineers. The initial time limit for a TN professional is only one year. However, status may be renewed on a yearly basis indefinitely.

The TN applicant is required to show non-immigrant intent for his/her stay in the U.S. As a result, if a TN holder applies for US permanent residency, he/she will have difficulty obtaining a TN visa or renewing his/her TN status.

Immigration Visa Quota for Foreign Born Canadian Citizens

TN visa holders should be aware that when they apply for US permanent residency, the determination as to which country’s visa quota they are subject to is the country of birth rather than country of citizenship.   Therefore, a foreign born Canadian citizen is subject to the immigration visa quota of his/her country of birth, rather than that of Canada. For example, Sean was born in mainland China. He emigrated from China to Canada and became a Canadian citizen 10 years ago. Sean’s employer applied for an I-140 after PERM was approved.  Currently, the immigration visa quota is oversubscribed for China, so Sean needs to wait until the immigration visa number becomes available for China-born applicants according to his priority date established by PERM petition before he can file an I-485 application for adjustment of status.

TN Holders Who Apply for a Green Card through PERM

Application for PERM Labor Certification is not considered initiation of the immigration petition, and becoming a beneficiary of a PERM does not violate the required non-immigrant intent for non-immigrant visas such as TN. Therefore, a TN visa holder’s employer can submit a PERM application on the TN holder’s behalf at any time without affecting the TN holder’s ability to renew his/her TN visa or status. Once the TN holder obtains Labor Certification through PERM, his/her employer can proceed to submit an I-140 petition. In general, submission of an I-140 will not affect the TN visa holder’s existing status in the U.S.  However, after submission of I-140 the TN holder may no longer be able to renew his/her TN visa because submission of I-140 manifests immigration intent.

Therefore, many TN holders who submit I-140 petitions are faced with a challenge: if their TN visa expires before they are able to file an I-485 and obtain an EAD card because visa numbers are not available for their country of birth, they cannot legally work in the US.  TN holders are even more constrained by the short time frame given under new PERM regulations, which provide that Labor Certification obtained through PERM is only valid for 180 days after approval. This provision forces the TN holder’s employer to file an I-140 within 180 days of PERM approval.

To maximize the chances that their legal status to work in the US is not affected when they initiate their immigration process, we suggest TN holders do two things. First, TN holders should try to renew their visa immediately before they submit their I-140 to prolong their TN status.  Usually it is permitted to renew a visa up to 6 months before its expiration.  Second, we suggest TN holders apply for H-1B as a backup when the H-1B quota becomes available in April, 2008.  H-1b visa/status allow the beneficiary alien to have dual intents and immigrant petition will not impact application or renewal of H-1B visa/status.

Finally, because the wait for visa number availability can be a lengthy one and the H-1B annual cap runs out so fast , it is important to map out a filing strategy that allows the maximum amount of time to legally work in the United States under TN status while waiting for visa numbers to become available.  The first step of this strategy is to recognize that the date of PERM filing sets the applicant’s priority date for visa number availability.  There is a 180-day window after PERM approval to file an I-140 petition, so ideally the applicant will extend his/her TN visa right before filing of  I-140 petition and file I-140 close to the 180 days deadline.  However, in practice, for safety, one should file I-140 around two months prior to the deadline to make sure that the case is properly filed.  In this way, there be almost a year and a half between the priority date for the applicant’s visa number and the day his/her TN visa expires.  During this year and a half, the TN visa holder will be able to work in the US while waiting for visa numbers to become available for his/her priority date.

--------------------
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past eleven years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.    

Houston offices：7324 Southwest Freeway, Suite 1088, Houston, TX 77074
Chicago offices：6 E. Monroe St. Suite 602, Chicago, IL 60603
New York offices： 1350 Broadway, Suite 1710, New York, NY 10018
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website： www.hooyou.com

(08/31/2007)

Refer this page to a friend

Adjustment of Status | Adoption | Advance Parole | Application Fees | Asylum & Removal | Business Entities | Corporate Clients | Consular Processing | Divorce | E-1 & E-2 | EAD | F-1 | Family Immigration | FAQs | Forms | Investor Visa | Immigration Glossary |
K Visa | L Visa | Marriage | Naturalization | Non-immigrant Visas | O-1 | Processing Time | Road to Green Card | TN | Visa Bulletin