Individuals who currently hold TN visa status have two options to renew or extend that status. They can file an I-129 petition by mail, or depart the U.S. and request a new TN in the same manner as they obtained their initial TN visa status.
I-129 Petition Mail-in Option
A citizen of Mexico or Canada may extend or renew his/her TN visa status by filing a petition by mail to the U.S. Citizenship and Immigration Services. This process is known as an “extension of status” (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. Embassy (Mexican citizens) in order to extend his/her employment authorization under TN visa status.
Basic Requirements
A TN visa worker may not take advantage of the I-129 petition Extension of Status process if he/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); 8 C.F.R. § 214.1 (c) (4) (2010).
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).
Petitions may be filed up to six months in advance of the proposed start date on the I-129.
In addition to the main components of a TN application, individuals must file Form I-129 along with the I-129 Free Trade Supplement.
TN visa workers must also submit proof of their current, valid TN visa status, e.g. I-94 records, visa stamps, and copies of recent pay stubs.
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).
Timely Filing Requirement
If the I-129 petition is filed after an individual's TN I-94 record has expired, USCIS will normally deny the petition.
However, in some situations the government may excuse a late filing if:
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;
the TN visa worker has not otherwise violated his/her nonimmigrant status;
the TN visa worker remains a bona fide nonimmigrant; and
the worker is not the subject of removal (deportation) proceedings. 8 C.F.R. § 214.1 (c) (4) (2010).
I-129 Processing
The I-129 form with supporting documents is then filed with USCIS' Vermont Service Center (as of March 19, 2020).
Currently, there is an average processing time of 2-4 months for this type of I-129 petition.
For an additional filing fee, an individual can apply for premium processing of his/her I-129 petition, and receive a decision on the petition within 15 calendar days.
Individuals can check the status of their petition at any time at USCIS' website by entering their receipt number where indicated. Applicants can also sign up through USCIS' website to receive email updates on their petition’s status.
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 his/her 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).
Employers must update the I-9 records of any TN visa workers relying on this 240 day rule for continued employment authorization.
Travel Issues While EOS Pending
The TN regulations state that if a TN visa worker must depart the U.S. while his/her extension of status petition is pending, the employer may request that USCIS notify the USCBP or the U.S. consulate of the petition’s approval to facilitate the TN visa worker’s admission to the U.S. 8 CFR 214.6 (h) (ii).
Despite this regulatory language, USCIS has stated that “split decisions” for I-129 TN petitions are not permissible. AILA/USCIS Liaison, AILA Doc. No. 17091131, pg. 3 (posted 9/11/2017). A split decision is where USCIS approves an I-129 petition on the merits, but does not approve the extension of stay, e.g. due to a failure to maintain status or other reason. In that scenario, the applicant typically must depart the U.S. and present his/her approved petition at the U.S. border in order to “activate” his/her new status. For I-129 TN extension requests, USCIS considers the petition a “single-step request…”, and has stated that “[t]here is no separate adjudication of a petition extension.” USCIS, Adjudicator’s Field Manual s. 30.2 (d) (3). This means that if a TN visa worker has failed to maintain his/her status, USCIS could fully deny the I-129 petition without approving the petition on the merits.
USCIS has also stated that a ”departure while a TN is pending does constitute an abandonment of the application. resulting in the TN being denied in full.” AILA/USCIS Liaison, AILA Doc. No. 17091131, pg. 3 (posted 9/11/2017). USCIS’ Standard Operating Procedure manual from Feb. 2011 also confirms this approach stating that a “petition for EOS and COS is either approved for both or denied (no split decision).” VSC SOP pg. 7 (Feb. 2011).
As result, if a TN visa worker departs the U.S. while his/her I-129 petition is pending, the petition may be denied in full, and the worker may have to re-apply for TN status at the border (or by mail from outside the U.S. if a Canadian citizen) or re-apply for a new TN visa stamp (if a Mexican citizen).
Family Members
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.
Family members would need to submit copies of the same documentation utilized to establish their initial eligibility for TD visa status, as well as proof of their current TD status. See 8 C.F.R. § 214.1 (c) (1) (2010).
In March 2019, USCIS began to require any co-applicants (e.g. children of TN visa workers) to complete a separate Form I-539A. See USCIS Update to I-539 & I-539A.
Additionally, all I-539 applicants must now undergo biometrics at a local Application Support Center (ASC) and pay an $85 biometrics service fee. See USCIS Update to I-539 & I-539A.
In July 2019, USCIS announced that it would no longer adjudicate I-539 applications under premium processing.
Filing Fees
I-129 petitions: $460 (as of Feb. 4, 2021).
I-129 petition premium processing (if needed): $2,500 (as of Feb. 4, 2021).
I-539 application: $370 plus $85 biometric fee for each applicant (as of Feb. 4, 2021).
Approval of I-129 EOS Petition
An approval for an extension of TN visa status requested through the USCIS Service Center is issued on Form I-797, which will include an I-94 tear-off form indicating the new validity period of TN status.
If approved, an extension of TN visa status may be authorized for up to 3 years. 8 C.F.R. § 214.6 (h) (1) (iii).
There is no specific limit on the period of time an individual may remain in TN visa status as long as he/she continues to work in a TN occupational category, and meet the temporary entry requirements. 8 C.F.R. § 214.6 (h) (1).
Mexican citizens: the approval of an I-129 petition does not result in a extension of travel authorization. Travel authorization for Mexican citizens can only be obtained by applying for a TN visa stamp at the U.S. Embassy/Consulate. (An I-129 approval may provide limited travel authorization through the visa re-validation process.)
"Extending" TN Status at the Border/U.S. Embassy
As an alternative to using Form I-129, TN visa workers may also "extend" their TN status by filing an application at the U.S. port-of-entry (Canadians) or at the U.S. Embassy/Consulate.
This process will generally involve the same steps and documentation required for an initial TN visa application.
Citizens of Mexico may be able to avoid the interview requirement in certain scenarios when renewing their TN visa stamps at the U.S. Embassy/Waiver.