Question: My company currently employs a Mexican citizen who holds F-1 status and is completing his OPT. We were going to look into an H1-B visa, but his OPT expires on March 13, so his work authorization wouldn't be extended under the "Cap Gap" extension even if his visa is approved.
We are looking into the TN Visa, but I am having trouble determining the application process for a Mexican who is already in the U.S. under another status. I see that we will have to file an I-129 to change his status, but I am confused on what other steps need to be taken.
Reply: Generally, Canadian and Mexican citizens physically present in the U.S. under F-1, H-1B, L-1 or most other nonimmigrant visa classifications may change to TN status by filing an I-129 petition with the USCIS. This process is known as a “change of status.” For Mexican citizens, this avoids a departure from the U.S. and the filing of an application at the U.S. consulate in Mexico for a TN visa stamp. The whole process can be accomplished from within the U.S.
Eligibility for Change of Status
To take advantage of the change of status process, a foreign citizen must (1) be physically present in the U.S.; (2) have maintained his or her current nonimmigrant status (e.g. no lapses in employment or unauthorized employment); and (3) file the petition for the change of status before his or her current non-immigrant status expires. F-1 students may file a change of status request during the 60 day grace period following the conclusion of studies or of OPT.
Basic Items Needed
The basic items required for a change of status petition for a citizen of Mexico requesting TN status consists of the following:
Executed TN Support Letter;
Completed and executed Form I-129;
Completed and executed Form I-129 Free Trade Supplement;
Copies of documents evidencing the individual’s eligibility for TN status under the relevant TN occupational category;
Copy of valid passport face page;
Copy of documents evidencing current, unexpired non-immigrant status in U.S. (e.g., I-94, I-797, I-20, EAD, visa);
Copy of individual’s Resume;
Informational literature on Employer; and
Payment in the amount of $320 for I-129 petition filing fee.
Employment Authorization Warning
The filing of an I-129 petition requesting a change to TN status does not automatically grant employment authorization. USCIS must approve the petition first before an individual may commence work under TN status. The adjudication process can take anywhere from 1-4 months.
The individual is authorized to remain in the U.S. during the adjudication of the I-129 petition. But once the individual’s prior employment authorization expires (e.g. an F-1’s OPT), he or she cannot start working again until USCIS approves the I-129 petition. It is therefore important to file the I-129 petition as soon as possible to ensure continued employment authorization (note: I-129 petitions can only be filed 6 months in advance of the employment start date).
USCIS does offer premium processing of I-129 petitions requesting TN status. By filing Form I-907, and submitting an extra $1,000 filing fee, a petition can be decided within 15 calendar days. The I-907 may be filed at the same time as the I-129, or submitted subsequently if necessary. Alternatively, if processing is extremely slow, the I-129 petition can be withdrawn, and the individual may apply for a TN visa at the U.S. consulate.
Travel Warning When Petition Pending
While a change of status I-129 petition is pending at USCIS, any travel outside the U.S. will result in the abandonment of the I-129 petition. If travel is necessary, a citizen of Mexico will need to apply for a TN visa stamp at the U.S. consulate in order to be re-admitted to the U.S. under TN status.
NOTE: This reply assumes the individual meets the substantive requirements for TN status and only addresses the process of filing an I-129 petition for a change to TN status on behalf of a citizen of Mexico.