Question #6: On
TN nearly 5 yrs. Was 1st staff RN to be turned down for labor cert. for H-1b in Northwest.
Ready to file I-140. My hospital is not eligible for H-1C. My TN expires Dec. 2. What do I
do if my I-140 is not processed--do I file an extension via mail for the TN with Nebraska
so I don't leave the USA? Will I lose my TN & be in trouble. Out of work?
Carl Shusterman: This problem occurs frequently in my practice. The
TN status means that you are representing to the INS that you have no intentions of
residing permanently in the US. However, the filing of an I-140 on your behalf
demonstrates the opposite that you intend to apply for permanent residence in the US.
Therefore, the best strategy is to wait a minimum of 60 days after you receive TN
status before having an I-140 submitted on your behalf.
If you have the I-140 filed sooner than 60 days, you risk having INS determine
that you misrepresented your original intention to return to Canada (or Mexico). However,
given the long processing times that prevail in all INS service centers, with the
exception of the Vermont service center, it is also a risk if you file an I-140 months
after receiving your one year TN status.
Therefore, assuming that your I-140 is filed within the designated time period, and
is not approved before your TN status is set to expire, I advise you to not leave the
country, but to apply for an extension of your TN status at the Nebraska Service Center...
no more than 1 week before your TN status is set to expire.
Make sure to indicate on your TN extension application that a visa petition has
been filed on your behalf.
The mere submission of your application for an extension of your TN status buys
you an additional 240 days of work authorization. Hopefully, your I-140 will be approved
during this period and/or your TN extension will be approved.
However, if worst comes to worst, Section 245k of the Immigration Law allows you
to adjust status in an employment based category, as long as you have not been out of
status, for more than 180 days.
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