New CBP “Appeals” Process for TN Visa Denials

According to a recent meeting held between the Upstate NY AILA chapter and the Buffalo, NY Peace Bridge CBP office, CBP has instituted a new “appeals” process for denied / withdrawn applications. Under this new procedure, which is effective immediately, if an application is denied the attorney of record may contest the decision by sending a submission to the port-of-entry’s Chief Inspector. The Chief will then provide an opinion on the case. AILA Upstate NY/Canada Peace Bridge Tour, Meeting Notes (February 10, 2015).

Presumably this new process applies to all types of visas adjudicated by CBP at the border (e.g. TN and L-1 visas), but may also apply to those individuals otherwise denied entry to the U.S. (e.g. as a visitor). It is not entirely clear if this is a mandatory process, or if individuals may instead still return to the border with additional information to contest a denial. It is also not clear whether this process is unique to the Peace Bridge port-of-entry, or if this procedure will be implemented at all ports. Additionally, no information was provided regarding the length of time applicants can expect to receive an opinion from the CBP Chief after initiating the “appeal” process.

More information will be provided here as it becomes available, and as our office utilizes this new process.

UPDATE Feb. 26, 2015:

  • This new "appeals" process currently only applies to the Buffalo, NY Peace Bridge port-of-entry.

Update on CBP Admission of Mexican TN Visa Workers

As discussed here in many previous posts, CBP officers have been incorrectly limiting the admission period of Mexican TN visa workers to 1 year instead of the 3-year period authorized under the TN visa regulations. Despite repeated assurances from CBP that its officers have been notified of this rule, Mexican TN visa workers still face this issue when entering the U.S. See, e.g. AILA/CBP National Liaison Meeting, pg. 12 (AILA Doc. No. 15020541 – posted 2/5/15).

I have previously written about how a Mexican TN visa worker can take steps to ensure that he/she is admitted for the full 3-year period authorized under the TN visa regulations. To recap, the following steps can be taken:

  • Ensure that the U.S. Embassy/Consulate has annotated your visa to confirm that the employer has requested a 3-year period of stay.
  • Have a copy of the employer's TN support letter requesting a 3-year period of stay when seeking entry to the U.S.
  • Have a copy of the DHS regulations for the TN visa classification showing that 3-year periods of stay are authorized.
  • Have a copy of the Foreign Affairs Manual (9 FAM 41.112 N1), which describes the difference between visa stamps and admission periods.

If an individual still cannot convince the CBP officer to issue a 3-year period of stay, CBP has advised that the individual can request to speak to an on-site supervisor. AILA/CBP National Liaison Meeting, pg. 12 (AILA Doc. No. 15020541 – posted 2/5/15). If still not successful, the CBP national office has stated that a TN visa worker may later go to a CBP deferred inspection office to have his/her period of stay corrected to 3 years. Id.

Travel on TN Visa After Prior TN Application Denial

Question: USCBP denied my initial TN visa application because the officer did not think my position qualified for a TN. I then hired your office to help me get my application approved, which you did by explaining to USCBP how my position qualified for a TN. However, I am still questioned about my denial and my TN status when I seek re-entry to the U.S. Is there any way to stop this? Not only is this an inconvenience, but I am concerned that my status is at risk.

Answer: It is not uncommon for an individual who has been previously denied a TN to face additional scrutiny when subsequently traveling to the U.S. While there is a record of a TN approval in USCBP’s system, an initial denial record is also still available. USCBP officers are enforcement-minded, and frequently will want to double-check their records to confirm that a TN was ultimately approved. Generally, individuals will initially face this extra questioning, and then the scrutiny subsides with the passage of time and as the TN holder re-establishes a good track record with USCBP.

There are a few options that could help minimize the potential for issues when returning to the U.S. in this scenario:

  • Travel with copy of successful TN application: In this scenario, we recommend that individuals have a copy of their approved TN application packet on hand to present to any USCBP officer if necessary to explain their case. While this may not eliminate delays during re-entry, in nearly all cases the presentation of the TN application packet is sufficient to resolve any issue and enable re-entry.
  • Apply for USCBP trusted traveler program (e.g. NEXUS): If not already in possession of a Trusted Traveler credential, it can be beneficial to obtain one in this scenario because individuals may travel to the U.S. under these programs without facing questions from a USCBP officer. However, USCBP takes a very strict approach when assessing the “risk factors” of applicants applying for these programs. Often times a TN denial is sufficient to result in the denial of a NEXUS application (or revocation of a previously issued NEXUS card).
  • File TRIP application: DHS created the Traveler Redress Inquiry Program (TRIP) process to assist individuals who experience difficulty when traveling to the U.S. This process can take several months to complete, and if DHS believes an individual has been improperly subject to heightened scrutiny, it will issue a redress control number and employ other procedures that can help facilitate re-entry. However, a successful outcome here cannot guarantee that an individual will never be subject to questioning when crossing the border. DHS’ standard letter explaining the resolution of a TRIP application contains the caveat that it cannot ensure an individual’s travel will be delay-free, or that he/she will be excused from standard screening procedures by USCBP.  
  • File an I-129 petition to extend TN status: When it comes time to extend your TN status, one option may be to file for the extension of status by mail using form I-129. This petition would be filed with USCIS, which is the customary adjudicator of worker visa petitions. Some USCBP officers may grant some deference to a TN petition approved by USCIS, and may be less willing to question that agency’s approval. However, USCBP has stated that it may still question individuals seeking entry with approved TN I-129 petitions.   I have seen instances of denials of entry despite an I-129 approval in recent months even in cases not involving prior TN application denials.
  • File for an H-1B visa: USCBP has the authority to adjudicate TNs at the border, but the adjudication of H-1B petitions rests solely with USCIS. As result, USCBP officers may be less inclined to question the merits of an H-1B as they would with a TN approval. Additionally, some of the issues that plague TN visa applicants (e.g. whether a job falls under a TN category) are not applicable to H-1B visas. The basis of a prior TN denial may, therefore, not impact the merits of an H-1B. The H-1B is not always an available option because of the annual cap placed on H-1B visas. Also, some cases may not be able to meet the other requirements for an H-1B.