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Tuesday
Nov152011

TN Visa Worker No Longer Working for TN Employer Loses Ability to Remain in U.S. Despite an Unexpired I-94 

Upon approval of an individual’s application for TN visa status at a U.S. port-of-entry, a U.S. Customs and Border Protection (CBP) officer will issue the TN visa worker an I-94 card that documents his/her TN visa status and the length of time the individual is allowed to remain in the U.S.

Most TN visa workers are aware that they cannot remain in the U.S. past the expiration date of their I-94 card.1 There is, however, much confusion over what happens when a TN visa worker is laid-off or otherwise terminates his/her employment prior to the expiration date of his/her I-94 card. Contrary to popular opinion, a TN visa worker loses his/her authorization to remain in the U.S. once he/she is no longer working for the TN employer - even if his/her I-94 has not yet expired! As soon as the employment relationship has ended, the TN visa worker is considered out-of-status despite possessing an unexpired I-94. There is no grace period here allowing an individual a certain period of time to depart the U.S. Technically, a TN visa worker must depart the U.S. upon the effective date of his/her termination / lay-off to avoid possible immigration penalties. Alternatively, they can file a petition to change employers, or a petition to change status to another non-immigrant category. In either event, action should be taken before the effective date of the layoff.

Individuals who remain in the U.S. after their TN employment has terminated can be subect to removal proceedings if U.S. immigration discovers their unauthorzed status. See INA 237 (a) (1) (C) (i). If a person subsequently departs the U.S. after a period of unauthorized status, and then seeks re-admission as a visitor or as a TN visa worker, CBP may deny the individual re-entry to the U.S. In most cases the denial is based on INA 212 (a) (7) (A)  as an intending immigrant because the individual has exhibited an intent to remain in the U.S. permanently by remaining in the U.S. without authorization. If CBP believes the violation was egregious, they may expedite remove the individual, which results in a 5 year bar to the U.S. See INA  212 (a) (9) (a) (i).

CBP will likely disregard any claims by TN visa workers that they were unaware of these requirements. For example, in one case CBP denied an individual’s TN application because she remained in the U.S. for several months following a lay-off. The inspecting officer also threatened to expedite remove the individual. In response to the TN visa worker’s claim that she thought she could remain in the U.S. after her layoff because her I-94 was unexpired, the inspecting officer noted that the individual had held TNs in the past, and as such “knows how they work.”2 The officer also noted that the individual “was a professional who presumably can do internet research about TNs...and would therefore be familiar with the rules.”

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1. Althought this may be permitted in certain situations when a TN visa worker has filed a petition for an extension or change of status.

2. Excerpts from individual’s Form I-213, Record of Deportable/Inadmissible Alien.

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