Make Sure Passports Valid for Entire Period of TN Stay

CBP Enforcing Passport Validity Rule for Border TN Applications

In order to enter the U.S. a foreign citizen must present a passport that is valid for a minimum of six months from the expiration date of the contemplated period of stay. INA § 212 (a)(7)(B)(i); 8 C.F.R. § 214.1(a)(3)(i).

The law previously exempted Canadian citizens from presenting a passport in order to enter the U.S. 8 C.F.R. § 212.1(a)(1). With the full implementation of the Western Hemisphere Travel Initiative on June 1, 2009, citizens of Canada are now generally required to present a passport for entry to the U.S.

This has resulted in a processing change for TN border applications. In the past, Canadian citizens presented a passport only to document that the applicant met the citizenship requirements for NAFTA. The passport was not required as an entry document. As result of the WHTI, CBP now requires Canadian citizens to present a passport that is valid for the entire period of the proposed stay.*Otherwise, CBP may limit the applicant’s TN I-94 to the expiration date of the individual’s passport.

Different passport rules apply for petitions requesting an extension of or change to TN visa status. Foreign citizens applying for an extension of status (EOS) or change of status (COS) must have a passport that is valid at the time of filing the petition. 8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire length of time requested in the EOS or COS. The regulations only require that the individual “agree to maintain the validity of his or her passport.” Id. If the passport will expire prior to the proposed period of stay, the individual must eventually obtain a new passport. USCIS should not limit the petition’s validity period to the expiration date of the passport.

*Citizens of Canada still enjoy a partial exemption from the requirements of INA § 212 (a)(7)(B)(i). Canadian citizens only need to have a passport valid for the proposed period of stay. They do not need to have a passport valid for six months beyond their period of admission. 9 FAM § 41.104 n.2.1.

Comments

[Ryan]

I am confused with the last paragraph,

"Different passport rules apply for petitions requesting an extension of or change to TN visa status. Foreign citizens applying for an extension of status (EOS) or change of status (COS) must have a passport that is valid at the time of filing the petition. 8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire length of time requested in the EOS or COS. The regulations only require that the individual “agree to maintain the validity of his or her passport.” Id. If the passport will expire prior to the proposed period of stay, the individual must eventually obtain a new passport. USCIS should not limit the petition’s validity period to the expiration date of the passport."

Is this referring to filing an EOS via mail to USCIS? Or also when going to the border and getting a TN (continuing at the same employer & job) Or is it when you go to the border it is not considered filing an EOS, but applying for a new TN, therefore the passport must be valid for the complete duration of the TN Visa (3years+6months)

Thank you,

Ryan

[Brian D. Zuccaro, Esq.]

The rule at 8 C.F.R. § 214.1(a)(3) only applies to petitions filed with USCIS. Applications submitted at the border are treated as "new applications" even if the application is for a continuation of employment with the original sponsoring company. As result, CBP may require any applicant for a TN at the border (e.g. new employer, continuation of prior employment) to possess a passport valid for the three year period.

Note that Canadian citizens only need to have the passport valid for the three years, and not the additional six months.

[RE]

My CDN passport expires in September; my TN Visa in 2012. I am traveling to South America in late March; therefore, my passport will have be valid for less than six months upon re-entering the country. As my TN was approved via USCIS, am I required to have my passport renewed prior to traveling or need I simply renew it when I return in order to maintain its validity.

[Brian D. Zuccaro, Esq.]

RE,

When you filed for your TN through USCIS, you were required to only have a valid passport and agree to keep it valid during the validity period of your TN.

Once you depart the U.S. and try to re-enter you will now be subject to the passport rules governing admissions to the U.S. So it is possible a CBP officer may issue you a new I-94 limiting your TN stay until the expiration date in your passport (Sept. 2010). You would then have to obtain a new passport and a new I-94 at the border for the remainder of your TN petition validity period (2012).

The passport admission rules are still not uniformly applied to Canadian citizens. So it's possible you'll still be issued an I-94 valid until 2012 when you return to the U.S. You can ensure you'll receive the maximum I-94 period by renewing your passport before your trip if possible.

[Ali]

Great website and blog ! Thanks a lot.

I have a question . I am in US on TN (valid until Aug 2014) together with my wife and daughter who both have TD. My wife's TD validity period is same as mine, i.e. Aug 2014 but her passport will expire in June 2012. She is applying for jobs and might be getting an offer soon from a company for an urgent position. hence will need to obtain TN. We got all documentation ready for TN but ignored the fact that her passport is expiring soon. :( If we apply for her Canadian passport renewal by mail from US , it takes 20 business days plus delivery time. Would be too long to wait if an offer comes in .

Here are a few questions we have : If we go to border without renewing her passport,

- can she get TN , even with the period limited by her passport expiry?
- or is there chance also that she can get denied?
- or may the officer ignore the fact that her passport is expiring and make his decision based on already existing TD period?

your answers appreciated,

Ali

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Ali,

If your wife files for her TN at the border it is likely that the inspecting officer would approve her TN status in CBP's internal systems for the time requested (e.g. up to 3 years), but limit her I-94 card until the expiration date on her passport. Once she obtains her new passport, she would have to return to the border to obtain a new I-94 card for the duration of her TN status.

I do not think there is a significant chance of denial based on this ground.

It is possible the officer may erroneously issue her an I-94 card for the full time requested without regard to the expiration of her passport. I think this would be more of an oversight rather than due to reference to her TD status period.

You could ensure the issuance of a 3-year TN if you file for the TN by mail using form I-129. A passport need only be valid at the time, and not for the full time period requested in this process. However, you would have to request premium processing of the petition (an extra $1225 filing fee) in order to obtain a decision in 15 days as opposed to the normal ~ 2 month process.

Brian Zuccaro