I am on an TN visa, why do I have to change to H-1B for my green card application?

Several clients have called to ask me if they can apply for the green card while being on a TN visa status and working in the United States. TN visa status are given to Canadians and Mexican citizens working in the United States under the NAFTA agreement.  The rumor on the internet is that a TN visa status holder cannot apply for the green card but unfortunately not much reasoning is provided for this analysis. I believe this point warrants clarification. TN visa status holder can apply for the green card, just like every other foreign professional working in the United States, under Employment Based Preference Category (EB) 1, 2, or 3.

EB-1 is reserved for applicants with extraordinary ability, while EB-2 an EB-3 are designated for applicants with a Master’s degree or a Bachelor (of art or science) degree.  The issue is that TN visa status is a nonimmigrant status that does not allow the status holder to possess the intention to immigrate to the United States, so after the green card application is filed, TN visa status holder might find it difficult to renew the TN visa or status because they are deemed to have the intention to immigrate, or immigrant intent. However, if the green card application is completed before the TN visa status holder need to renew or cross the border (crossing the boarder is treated like a renewal), then the green card can be approved just the same.  This is only possible generally for people who have a Master’s degree because the processing time as of February 2015 is roughly about a year and half; whereas EB-3 (B.A. or B.S. degree holder) can wait up to 3 years, but TN visa duration is less than that, and the green card applicant will be faced with difficulty to renew TN visa status.

The solution is to change to H-1B visa status. H-1B, like L-1A and L-1B are “dual intent” visa status that allow the visa status holder to possess the intention to immigrate to the United States. Changing to H-1b will allow the green card applicant 6 years to finish the green card processing, which is enough time even for EB-3. Please note that H-1b application opens only on April 1st of every year and generally will have a lottery due to high volume of applications being received by USCIS.
If you have any question about applying for green card as a TN visa status holder, please feel free to contact my office by email or call (213) 738-8700 to speak to our immigration lawyers in Los Angeles, who can assist you with green card application while on TN visa status.

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