Extension of TN Visa Status.
Overview of TN Visa Extension/Renewal by Mail or at Border/Consulate.
A citizen of Mexico or Canada may extend or renew his or her TN visa status under NAFTA by filing a petition by mail to the U.S. Citizenship and Immigration Services. This process is known as an “Extension of Status” or EOS. Alternatively, a TN visa worker may extend his or her status by resubmitting an application at the border (Canadian citizens) or at the U.S. Consulate (Mexican citizens).
1. General Process: I-129 Petition TN Visa EOS.
The EOS process eliminates the need for a TN visa worker to depart the U.S. and apply for a new TN at the border (Canadian citizens) or at the U.S. consulate (Mexican citizens) in order to extend his or her employment authorization under TN visa status.
A TN visa worker may request an extension of TN status by mail by filing Form I-129, along with the typical documentation required to establish eligibility for TN visa status. In addition to these items, TN visa workers should also submit proof of their current, valid TN visa status, e.g. I-94s, visa stamps, etc. (more on this below). Family members of TN visa workers may also file for an extension of their TD visa status by mail, but must use Form I-539. Again, family members would need to submit the typical documentation required to establish eligibility for TD visa status, as well as proof of current TD status. See 8 C.F.R. § 214.1 (c) (1) (2010).
TN visa workers filing for an EOS by mail must have a passport that is valid at the time of filing the petition. Unlike the passport rules for applications at the border or at the U.S. consulate, the passport need not be valid for the full length of TN visa status sought. However, the worker must agree to otherwise maintain the validity of his or her passport. See 8 C.F.R. § 214.1 (a) (3) (2010).
As of October 2010, all I-129 petitions seeking an extension of TN visa status must be filed with the USCIS Vermont Service Center. The current government filing fee for an I-129 petition is $320.00. The government filing fee for an I-539 application is $300.00. Filing procedures and fees change frequently, and so it is important to check with USCIS prior to submitting any petition. More on filing fees.
2. Maintenance of Status & Timely Filing Requirement.
A TN visa worker may not take advantage of the I-129 petition Extension of Status process if he or she has failed to maintain TN visa status, or if the TN visa worker's I-94 has expired before the I-129 petition was filed. 8 C.F.R. § 214.6 (h) (2010); 8 C.F.R. § 214.1 (c) (4) (2010). USCIS recommends filing an I-129 petition for extension of status at least 45 days before employment authorization expires. Petitions may be filed up to six months in advance of the proposed start date on the I-129. In light of occasional extended processing times, the best practice is to file as soon as possible.
If the I-129 petition is filed after an individual's I-94 has expired, USCIS will normally deny the petition. However, in some situations the government may excuse a late filing if:
(i) The delay was due to extraordinary circumstances beyond the control of the TN visa worker/employer, and USCIS finds the delay commensurate with the circumstances;
(ii) the TN visa worker has not otherwise violated his or her nonimmigrant status;
(iii) the TN visa worker remains a bona fide nonimmigrant; and
(iv) the worker is not the subject of removal (deportation) proceedings. 8 C.F.R. § 214.1 (c) (4) (2010).
3. The “240-day Rule”: Continued Employment Despite Expired I-94.
A TN visa worker whose I-94 has expired, but who has filed a timely I-129 petition for an Extension of Status, is allowed to continue working for the same employer for 240 days past the expiration date of the I-94. 8 C.F.R. 274a.12 (b)(20). However, if USCIS adjudicates the I-129 petition prior to the expiration of this 240 day period and denies the petition for extension of stay, the employment authorization will automatically terminate upon notification of the denial decision.
Note: This provision providing employment authorization in this scenario applies only to EOS petitions, and is not available for individuals filing Change of Status petitions (e.g. from F-1 to TN visa status).
4. Physical Presence in U.S. & Travel Issues.
In order to file an EOS I-129 petition, a TN visa worker must be physically present in the United States at the time of the filing of the extension of stay. 8 C.F.R. § 214.6 (h) (1) (ii) (2010). A TN visa worker whose TN status has expired but who has filed a timely I-129 petition for an EOS must use caution when departing the U.S. while the petition for extension is pending. While a departure in this situation will not be considered an abandonment of the extension petition, because the worker's TN visa status has expired the individual would not be able to re-enter the U.S. in TN status under the expired I-94. The worker will generally have to remain outside the U.S. until USCIS approves the EOS petition.
If the TN worker must leave the United States for any reasons while the extension request is pending, the petitioner may request USCIS to cable notification of approval of the petition to the port-of-entry where the TN visa worker will apply for admission to the United States (Canadians) or to the U.S. consulate where the individual will apply for a TN visa stamp (Mexicans). 8 C.F.R. § 214.6 (h) (1) (ii) (2010).
Rather than wait outside the U.S. for USCIS to adjudicate the petition in this scenario, the worker may seek a new TN at the border (Canadians) or U.S. consulate (Mexicans). However, immigration officials may request the applicant to withdraw the pending EOS petition before they would consider a new TN visa application.
5. Approval of I-129 EOS Petition.
If approved, an extension of TN visa status may be authorized for up to one year to three years. 8 C.F.R. § 214.6 (h) (1) (iii) (2010). More on Three Year TNs. There is no specific limit on the period of time an individual may remain in TN visa status as long as he or she is engaged in TN business activities at a professional level and continues to maintain TN nonimmigrant intent. 8 C.F.R. § 214.6 (h) (1) (v) (2010).
An approval for an extension of TN visa status requested through the USCIS Service Center is issued on Form I-797A, which will include an I-94 tear-off form indicating the new validity period of TN status. Read more about the I-797 Forms.
6. No Appeal to I-129 EOS Decisions.
Under the EOS regulations, the government does not allow an individual to file an appeal from USCIS' denial of an I-129 petition for extension of status. 8 C.F.R. § 214.1 (c) (5) (2010). The Administrative Appeals Office has specifically applied this rule to TN visa EOS petitions and has rejected appeal requests for these petitions. See, e.g. In re X, LIN-04-165-52390 (AAO 7-25-2005).
7. "Extending" TN Status by Filing at the Border/U.S. Consulate.
A TN visa worker may extend his or her status by resubmitting an application at the border (Canadian citizens) or at the U.S. Consulate (Mexican citizens). Re-submitting an application in this fashion is technically not an "extension of status", but is considered a new application. Generally, this type of application will require only the items normally submitted in applications at the border/U.S. consulate.
8. Additional Materials:
- TN Visa Filing Chart (compares TN visa filing options).
Revised Oct. 5, 2010.