Your pathway from a TN visa holder to a green card will depend on whether your spouse is a green card holder or a U.S. citizen. Also, it depends on how you will apply for it: via Adjustment of Status (AOS) or consular processing.
The process called “Adjustment of Status” is used by most applicants. The USCIS will handle your application while you are in the United States. This allows you to apply for a work permit, so if your TN nonimmigrant visa expires, you may keep working lawfully. However, as an AOS applicant, you have to be careful to avoid triggering the 90-day rule.
On the other side, the process called “Consular processing” is used by most applicants who are not at the time in the United States. In this case, a U.S. consulate or embassy in your home country will handle your visa application. It means you’ll have to return to your home country for a medical examination and consular interview.
Case 1: Your spouse is a U.S. citizen
As we mentioned above, in this case, you will apply for the green card using AOS. You and your spouse will file two forms:
- Your spouse will file the family sponsorship form (Form I-130- the “Petition for Alien Relative”)
- You are required to file the green card application (Form I-485- “Application to Register Permanent Residence or Adjust Status”)
Usually, both of you will file these forms at the same time.
Case 2: Your spouse is a U.S. citizen, and you use consular processing
Applying for a green card via consular processing is typically used by applicants residing outside the United States. But, it may also be initiated from within the country. Still, in that case, you would have to return to your home country for an interview and medical examination. Since you will leave the country and won’t trigger the 90-day rule, this approach is the safest way to shift from a TN status to a green card.
But keep in mind that as a consular processing applicant, you can’t remain in the United States or gain employment authorization if your TN visa expires before you obtain the green card.
The application process is the same as the one used by the spouses of U.S. citizens living abroad:
- Filing the family sponsorship form (Form I-130- “Petition for Alien Relative”) with USCIS.
- Upon the approval of the I-130 form, your case will be transferred to the National Visa Center (NVC), so you have to pay fees, file the DS-260, and mail in your supporting documents.
- Consulate or embassy in your home country will receive your documents. You will get a time and date for your consular interview. Bear in mind that you will have to bring your medical examination results when coming to the interview.
Typically, the whole process takes 11-17 months.
If you do not get your application’s approval during your consular interview, you may receive a request for evidence (RFE) or a follow-up interview.
Case 3: Your spouse is a green card holder
If your spouse holds a green card, you can file your TN visa application either through AOS or consular processing. Still, you’ll need to wait for a green card to become available for you.
Sometimes you need to leave the United States and complete your application using consular processing. However, for both case scenarios, you’ll first need to file the family sponsorship form or Form I-130. Upon the approval of Form I-130, you must wait for a visa number showing that a green card is available to you.
If it becomes available for you before the TN visa expires, you may stay and apply for a green card using AOS. Also, using the consular processing, you can apply from within the United States, but if your TN visa expires before your green approval, you’ll have to leave the United States.
If a green card becomes available after your TN nonimmigrant visa expires, you’ll have to return to the home country to complete your green card application through consular processing.
To apply via AOS, you have to file Form I-485 (“Application to Register Permanent Residence or Adjust Status). You will be able to remain in the United States and get a work permit until you wait, typically 29-38 months.
Applying for a TN visa status through consular processing requires you to file the DS-260 online. If you apply from within the United States, you’ll have to return to your home country for a medical exam and consular interview. The whole process typically takes 23-32 months, and you won’t be able to remain in the United States if your TN visa expires before your green card is approved.
If you begin an application through AOS, you’ll have to be careful not to trigger the 90-day rule, but you’ll be able to remain in the United States and request permission to work even after your TN visa expires. If you use consular processing, you’ll avoid any problems with the 90-day rule, but you’ll have to leave the country before your TN visa expires.