Canadian with H4 EAD, now out of status can AOS to TN

[udaysoms]

I m Canadian on H4 EAD, my spouse is on H1. spouse recently got laid off and has health issues. Can I apply for TN visa and continue to work? And get my spouse on H4 visa

[newacct]

First, your title says "out of status", but neither you nor your spouse is out of status until 60 days after he stopped working (or until the I-94 expired, whichever is first). This is important because someone who is out of status cannot generally do Change of Status.

Second, your title says "AOS" (Adjustment of Status), but "Adjustment of Status" is the name of the process of getting a green card from within the US. The process for changing from one nonimmigrant status to another nonimmigrant status from within the US is called Change of Status (COS).

If you are not yet out of status (i.e. 60 days has not passed since your spouse stopped working), then your employer can file I-129 for your Change of Status to TN status. Your spouse can file I-539 for Change of Status to TD status. However, you cannot work after you lose your current status before the I-129 is approved. The I-129 can be filed with premium processing for faster approval.

Alternately, since you are a Canadian citizen, you can just leave the US and re-enter the US with your Canadian passport, without needing a visa, to seek entry into TN status, if your job qualifies for TN. Your spouse can then either apply for Change of Status to TD status, or leave the US and re-enter into TD status (either without a visa if they are a Canadian citizen, or they would have to get a TD visa at a US consulate if they are not).