Switching from a TN visa to a new visa category is often necessary for those seeking longer-term opportunities in the United States. While the process may seem complex, understanding each step ensures a smoother experience. Here’s a detailed look at each stage, from determining eligibility to waiting for USCIS’s decision.
1. Key Considerations Before Changing Your TN Visa Status
Before you initiate the change from a TN visa to another status, review the following important points:
Avoid International Travel During Processing
Leaving the U.S. while your change-of-status application is pending with USCIS can lead to an automatic “abandonment” of your application. USCIS may consider your departure as a voluntary withdrawal, resulting in an application denial. If international travel is unavoidable, consult an immigration attorney to understand your options and any potential implications.
Dependents on TD Visas
If you have dependents (spouse and/or children) on TD status, they must file Form I-539A to transition their status along with yours. This form is used in conjunction with Form I-539 for nonimmigrants looking to extend or change status for dependents. Ensure that all TD applications align with your primary application to avoid delays or discrepancies.
Consider Work Authorization Implications
A change in visa category can directly impact your authorization to work in the U.S. For example, if you are moving from a TN visa to an H-1B, you may experience a gap in work authorization unless your new employer files a petition with USCIS allowing for continuous employment. Consult with your employer or immigration specialist to understand if the new visa category affects your work eligibility.
2. Eligibility Requirements to Change TN Visa Status
To be eligible for a change in your nonimmigrant status, it’s crucial that you meet certain criteria to avoid processing issues:
Valid TN Visa Status
You must currently hold a valid TN visa in the U.S. to apply for a change of status. USCIS will check your status by referencing your I-94 Arrival/Departure Record, so ensure this record reflects your current status before filing.
Compliance with TN Visa Conditions
It’s essential that you have followed all the conditions of your TN visa, such as not working for employers outside the TN arrangement, as any violations may complicate your application for a status change.
No Disqualifying Criminal Convictions
Certain criminal offenses can make applicants ineligible for a change of status. USCIS will review your criminal background during this process, so any convictions could impact your application. If you’re uncertain about the impact of past legal issues, consult an immigration attorney.
3. Choose Your New Visa Type and Confirm Eligibility
Choosing the correct visa category is a foundational step when planning your transition. Here are some common options for TN visa holders:
- H-1B Visa: Suitable for those in specialty occupations. The H-1B has a lottery system and cap restrictions, so plan accordingly.
- O-1 Visa: For individuals with extraordinary ability or achievement in their field.
- L-1 Visa: Available for those transferring within the same company to a U.S. location in a managerial or specialized knowledge role.
Each visa type has distinct eligibility requirements. Review USCIS’s detailed criteria for your intended category to ensure you qualify before initiating the change.
4. File the Correct Form: Form I-129 or Form I-539
Once you’ve chosen your new visa type, determine the correct form to use for your application:
Form I-129 (For Employer-Sponsored Changes)
Form I-129 is used when an employer sponsors the visa change. For example, if you’re transitioning to an H-1B, your prospective employer would file Form I-129 with USCIS. Ensure all sections are completed accurately and include supplementary documentation, as missing information can delay the process.
Form I-539 (For Self-Initiated Changes)
Form I-539 is typically used for self-initiated changes of status, such as transitioning from a TN visa to a B-2 (tourist) visa. This form can also be used for dependents seeking TD status changes. Check the instructions thoroughly and confirm that any dependents submit Form I-539A as necessary.
5. Gather and Submit Supporting Documents
Submitting accurate and complete documentation is essential. Requirements may include:
- Proof of Eligibility: Evidence such as an employment offer letter, specialized credentials, or educational certificates demonstrating your qualifications for the new visa type.
- Copy of Passport: A clear, current copy of your passport and any past visas.
- Current I-94 Record: Proof of valid TN status.
Other documents may apply depending on the specific visa type, so refer to USCIS instructions to ensure you submit everything needed to support your application.
6. Pay the Required USCIS Filing Fees
Filing fees for Form I-129 and Form I-539 vary and may change periodically. Check the latest fee structure on the USCIS Fee Schedule page to ensure accurate payment, as incorrect fees can delay or prevent processing. USCIS accepts payment by check or card, but always confirm the accepted methods as they can vary by location and form type.
7. Await USCIS Decision and Understand Possible Outcomes
After submission, the processing time will depend on factors such as the type of visa, application volume, and USCIS workload. Here are some points to keep in mind while waiting for your decision:
- Typical Processing Times: USCIS processing times fluctuate, so regularly check the estimated times on the USCIS website.
- Maintaining Status if Your I-94 Expires: If your I-94 expires while the application is pending, you generally won’t accrue unlawful presence; however, if USCIS denies your application, you may need to leave the U.S. promptly to avoid future immigration complications.
- Premium Processing: For certain visa categories, you may expedite your application by opting for premium processing, which is available for an additional fee.
Conclusion
Transitioning from a TN visa to another visa type in the U.S. can be a detailed process. Following USCIS guidelines carefully and gathering the necessary documentation can help ensure a smoother process. Consulting with an immigration lawyer can provide tailored advice, especially for unique cases or concerns about meeting specific eligibility criteria.
Additional Outside Resources
- USCIS: Form I-539 Application to Change Status
- USCIS: Form I-129, Petition for a Nonimmigrant Worker
We Can Help!
You may have questions regarding TN visa requirements. We invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
