U.S. immigration law can be complex, especially for professionals seeking to change their non-immigrant visa status to TN visa status. This overview will clarify the process and requirements for obtaining TN visa status through a Change of Status (COS) I-129 petition or by applying outside the U.S. The TN visa is a non-immigrant visa for qualified Canadian and Mexican citizens. It allows them to work in the U.S. in certain professional occupations under the United States-Mexico-Canada Agreement (USMCA), formerly NAFTA.
Two Paths to TN Visa Status
Individuals currently in the U.S. under a different non-immigrant visa have two primary options to obtain TN visa status:
- Filing an I-129 Petition by Mail (Change of Status) – The first option is filing an I-129 Petition by Mail for a change of status. This involves submitting Form I-129, along with supporting documents like proof of citizenship, a job offer letter from a U.S. employer, and evidence of qualifications, to USCIS. This method allows applicants to remain in the U.S. during processing, although it can take several weeks or months.
- Applying for TN Status Outside the U.S. – The second option is applying for TN status outside the U.S. This involves gathering necessary documentation and either attending an interview at a U.S. consulate (for Mexican citizens) or presenting documents at a port of entry (for Canadian citizens). This method often results in faster processing and allows for immediate international travel, but it requires leaving the U.S. and incurring travel expenses.
TN Visa Change of Status via I-129 Petition
Eligibility for I-129 Petition
To be eligible to file an I-129 petition for a change of status (COS) to a TN visa, an individual must meet the following criteria:
- Lawful Admission: The applicant must have been lawfully admitted to the U.S. under a valid non-immigrant visa.
- Maintaining Status: The applicant must continue to maintain their current non-immigrant status throughout the application process.
- Timely Filing: The petition must be filed before the expiration date on the applicant’s current I-94 record, which indicates their authorized stay in the U.S.
Filing Requirements
When filing an I-129 COS petition, the following documents are necessary:
- Form I-129: Petition for a Nonimmigrant Worker, which includes detailed information about the applicant and the job offer.
- I-129 Free Trade Supplement: This supplement is specific to TN visa applicants and outlines the details required under the USMCA.
- Proof of Current Non-immigrant Status: This includes I-94 records, visa stamps, and recent pay stubs if applicable, to demonstrate the applicant’s lawful status in the U.S.
Timely Filing
The I-129 petition must be submitted before the individual’s I-94 record expires. If the filing is late, USCIS may excuse the delay under extraordinary circumstances beyond the control of the individual or their employer, such as serious illness or natural disasters. However, late filings are subject to USCIS discretion and are not guaranteed to be accepted.
Ineligibility for Change of Status
Certain individuals are restricted from filing for a COS to TN status, including:
- Graduate Medical Education: Those who have received graduate medical education or training in the U.S. are not eligible.
- J-1 Visa Holders: Individuals subject to the J-1 visa 2-year home residence requirement cannot change to TN status unless they have obtained a waiver.
- Health Care Workers: Individuals requiring a Health Care Worker Certificate must obtain one before applying; otherwise, they are ineligible for a COS to TN status.
USCIS Processing
The I-129 form and supporting documents are submitted to a USCIS Service Center. Processing times can take several months, but premium processing is available for an additional fee, ensuring a decision within 15 business days. Applicants can check their petition status on the USCIS website.
Travel Restrictions During I-129 Petition Processing
Traveling outside the United States while an I-129 petition is pending can have severe consequences for the applicant. According to U.S. immigration regulations, if an applicant departs the country before the I-129 petition is fully processed and approved, the petition will be considered abandoned. This abandonment results in the automatic denial of the petition, as U.S. Citizenship and Immigration Services (USCIS) assumes that the applicant no longer wishes to pursue the requested change or extension of status. Therefore, applicants must remain in the U.S. until they receive a decision on their I-129 petition to avoid jeopardizing their immigration status and plans.
Changing to TN Visa Status Outside the U.S.
Alternatively, individuals seeking TN visa status can leave the United States and apply at a U.S. port-of-entry if they are Canadian or at a U.S. Embassy or Consulate if they are Mexican. This approach involves submitting a TN visa application directly to U.S. Customs and Border Protection (CBP) officers at the port-of-entry or consular officers at the U.S. Embassy or Consulate. The application process typically requires the same documentation as the initial TN visa application, including proof of Canadian or Mexican citizenship, a job offer from a U.S. employer for a position that qualifies under the NAFTA Professional Job Series List, and evidence of qualifications for the job. This method allows applicants to bypass the U.S. Citizenship and Immigration Services (USCIS) processing times for a change of status, potentially providing a faster route to obtaining TN status. However, applicants should ensure they have all required documents and be prepared for in-person interviews and inspections.
Family Members: TD Visa Status
Family members of a TN visa holder, specifically the spouse and unmarried children under 21, can apply for TD visa status to accompany or join the TN visa holder in the United States. To apply for TD status, they must submit Form I-539, Application to Extend/Change Nonimmigrant Status. This form should be accompanied by supporting documentation that proves their relationship to the TN visa holder, such as marriage certificates for spouses and birth certificates for children. Additionally, they must provide evidence of the TN visa holder’s valid non-immigrant status, including a copy of the TN visa holder’s Form I-94 Arrival/Departure Record, TN visa approval notice, and employment verification. The family members must maintain their own non-immigrant status while in the U.S. The TD visa allows them to stay in the U.S. for the same duration as the TN visa holder, but it does not permit them to work. However, TD visa holders may study part-time or full-time in the U.S.
Approval of Change of Status
Upon approval of the I-129 petition for TN status, U.S. Citizenship and Immigration Services (USCIS) will issue Form I-797, Notice of Action. This notice includes a new Form I-94, Arrival/Departure Record, which indicates the validity period of the TN status. The TN visa status can be granted for an initial period of up to three years. As long as the individual continues to meet the eligibility requirements, which include maintaining employment with a U.S. employer in a professional occupation listed under the United States-Mexico-Canada Agreement (USMCA), the status is renewable indefinitely. To renew TN status, the applicant must either file a new I-129 petition with USCIS or, for Canadians, reapply directly at a U.S. port-of-entry or, for Mexicans, at a U.S. Embassy or Consulate. Maintaining compliance with all TN visa requirements, such as not exceeding the authorized period of stay and not engaging in unauthorized employment, is crucial for renewals and continued lawful status in the U.S.
Special Note for Mexican Citizens
While an approved I-129 petition grants TN status, it does not automatically confer travel authorization to Mexican citizens. Unlike Canadian citizens, who can apply for TN status directly at U.S. ports of entry, Mexican citizens must take another step to obtain definitive travel authorization. After receiving the approved I-129 petition and Form I-797 from USCIS, Mexican citizens must apply for a TN visa stamp at a U.S. Embassy or Consulate in Mexico. This process involves scheduling an interview, submitting required documentation such as the approval notice, proof of Mexican citizenship, and a job offer letter from a U.S. employer, and paying the applicable visa application fees. The consular officer will review the application and interview to ensure all eligibility criteria are met. Upon approval, the TN visa stamp will be placed in the applicant’s passport, allowing them to travel to the U.S. and request admission in TN status at a port-of-entry. It is important to note that this visa stamp is essential for entry into the U.S. and must be obtained before traveling.
Conclusion
Obtaining a TN visa status can be complex, but understanding the two main paths—filing an I-129 petition or applying outside the U.S.—can simplify it. Each method has benefits and requirements, and choosing the right one depends on individual circumstances. Always ensure timely and accurate documentation to avoid delays or issues. For personalized assistance, consulting an immigration expert is recommended.
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