Question: My F-1 is out of status for failure to maintain full time credits, and I want to change to a TN visa status. I have a company who wants to hire me. But I don't know if the F-1 (out of status) issue will affect my change of status to a TN visa. What should I do?
Answer: An F-1 student who drops below a full course of study without the prior approval of the school’s immigration official is considered out of status. 8 C.F.R. § 214.2(f)(6)(iii). Generally, individuals who have fallen out of status may not file for an extension of status or change of status through the USCIS Service Center. 8 C.F.R. § 214.2(c)(4); 8 C.F.R. § 248.1(b). If you were to pursue TN status, you therefore may not be able to file for a change of status through the Service Center. You may have to depart the U.S. and file for the TN at the port-of-entry or pre-flight inspection (if Canadian citizen) or at a U.S. consulate (if Mexican citizen). Whether your failure to maintain F-1 status will prejudice your ability to obtain a TN requires further analysis.
You’ll need to verify that you have not accrued any unlawful presence when you fell out of status. A foreign national who remains in the U.S. beyond the period of “authorized stay” is considered unlawfully present. If a foreign national is unlawfully present in the U.S. for more than 180 days, but less than 1 year, and he or she departs the U.S., the individual would be inadmissible to the U.S. for three years. If a foreign national is unlawfully present for more than one year, and departs the U.S., the individual is inadmissible to reenter the U.S. for 10 years. See INA § 212 (a)(9)(B).
If you were given an I-94 that expired on a specific date, then you would only accrue unlawful presence if you remained in the U.S. past the expiration date of the I-94. If you have an I-94 marked “D/S” for duration of status (as most students do), then you would accrue unlawful presence from either (i) the date U.S. immigration finds a status violation while adjudicating a request for another immigration benefit or (ii) the date an immigration judge finds a status violation during the course of removal proceedings. If neither of these two scenarios applies, then at the moment you’re not in risk of accruing unlawful presence.
If unlawful presence isn’t an issue, then you should be able to apply for a TN despite the failure to maintain your F-1 status. Immigration officials can always question you on the topic, so you should be prepared to explain what happened. But the fact that you failed to maintain your F-1 status, by itself, should not be sufficient reason to deny you a TN.
Note on Reinstatement Applications: An F-1 student who falls out of status and applies for reinstatement risks being subject to the unlawful presence bars. If USCIS denies the reinstatement application, unlawful presence will start to accrue as of the date of denial.
Note on INA 222 (g): Individuals admitted to the U.S. based on a non-immigrant visa who remain in the U.S. beyond their period of authorized stay will have their visa voided under INA 222(g). Additionally, they may not be re-admitted to the U.S. until they have obtained a new visa at their home consulate (except in extraordinary circumstances). Generally, F-1 students admitted D/S are not subject to INA 222(g) unless they are found by USCIS or an Immigration Judge to have violated status. 9 FAM 40.68 N2.2-2. Because Canadian citizens do not need an F-1 visa in order to enter the U.S as an F-1 student, they are not subject to the visa voidance and home consulate provisions of INA 222 (g). See 9 FAM 40.68 N2.1.