Navigating the TN Visa to AOS Transition: Understanding the 90-Day Rule

Introduction

Transitioning from a TN visa to Adjustment of Status (AOS) can be a complex process, especially when considering the often-discussed "90-Day Rule." The TN visa, designed for Canadian and Mexican citizens under the North American Free Trade Agreement (NAFTA), is a non-immigrant visa that allows for temporary employment in the U.S. However, when a TN visa holder decides to adjust their status to become a permanent resident, the situation becomes intricate due to the dual intent doctrine and the timing involved. This blog post explores the legal nuances of this transition and the role of the "90-Day Rule," which is often shrouded in confusion.

What the Law Says

When dealing with immigration law, it's essential to understand the statutory and regulatory framework. The TN visa, under 8 CFR § 214.6, is a non-immigrant category, which inherently implies an intent to return to one's home country after the temporary stay. On the other hand, filing for Adjustment of Status (AOS) under 8 U.S.C. § 1255 requires an intent to immigrate permanently.

The "90-Day Rule" is a guideline used by the Department of State, not a statutory law, to assess whether non-immigrant visa holders may have misrepresented their intent upon entering the U.S. If an individual applies for AOS, gets married, or engages in other activities inconsistent with their non-immigrant status within 90 days of entry, it could be presumed that they misrepresented their intent. Although this rule is not binding on USCIS, it is often taken into account when adjudicating AOS applications.

How This Situation Plays Out

In practice, a TN visa holder whose priority date becomes current and who is eligible to file for AOS faces a timing dilemma. The critical question is whether to wait 90 days after entry to file for AOS to avoid the presumption of misrepresentation. While the "90-Day Rule" is not a hard and fast rule for USCIS, it provides a measure of caution.

Here's a step-by-step breakdown of how this process typically unfolds:

1. Entry on TN Visa: The individual enters the U.S. on a TN visa, which requires a non-immigrant intent.
2. Priority Date Becomes Current: The individual's priority date becomes current, allowing them to file for AOS.
3. Consideration of the 90-Day Rule: The individual must decide whether to file for AOS immediately or wait 90 days to mitigate any risk of misrepresentation.
4. Filing for AOS: The individual files Form I-485, Application to Register Permanent Residence or Adjust Status.

Common Mistakes in These Cases

Several pitfalls can arise during this transition:

• Misunderstanding Intent: Filing for AOS too soon can lead to allegations of misrepresentation if the intent to immigrate was formed before or at the time of entry.
• Ignoring USCIS Discretion: Assuming the "90-Day Rule" is a rigid requirement can lead to unnecessary delays. Each case is unique, and USCIS officers have discretion in their assessments.
• Incomplete Documentation: Failing to provide comprehensive evidence of the intent to maintain non-immigrant status at entry can complicate the AOS process.

When to Get Legal Help

Given the complexities of transitioning from a TN visa to AOS, seeking legal assistance is advisable. An experienced immigration attorney can provide guidance tailored to individual circumstances, helping to navigate potential pitfalls and ensure compliance with immigration laws. Legal counsel can also assist in preparing a robust AOS application to address any intent-related concerns.

About This Post

This post was inspired by a question on r/USCIS, where a user sought clarity on the timing and intent issues when adjusting status from a TN visa.

This post provides general information and is not legal advice. Immigration law is complex and your facts matter. Consult an attorney about your specific situation. Schedule a consultation