Question: I am a Canadian citizen currently coming to the end of completing my one year OPT (optional practical training) following my graduation from college in the U.S. The organization I currently work for would like to continue employing me. If I were to apply for the TN visa and get denied, what are my chances of being able to cross back into the U.S. to continue my current work until my OPT and EAD expire in a month or so? Would it be possible for the border officials to deny my TN visa application and also deny my entrance back to the U.S. even though my OPT/EAD has not yet expired?
Reply: The F-1 OPT regulations provide for two scenarios that could lead to the denial of admission despite a facially valid OPT/EAD card. Under 8 C.F.R. § 214.2 (f) (10) (ii) (B), the authorization to engage in optional practical training (OPT) automatically terminates when the student transfers to another school (for those still attending) or begins study at another educational level. Also, accumulating more than 90 days of unemployment during your OPT may result in a status violation and could render an OPT/EAD invalid. See 8 C.F.R. § 214.2 (f) (10) (ii) (E).
The F-1 OPT regulations do not provide any other grounds for the automatic termination of an OPT/EAD. The regulations do state that an individual with an unexpired EAD who is otherwise admissible to the U.S. may return to the U.S. to resume employment after “a period of temporary absence.” 8 C.F.R. § 214.2 (f) (13) (ii). However, in order to re-enter the U.S., in addition to the unexpired EAD, the student must have an I-20 ID form endorsed by the school within the last six months. Id.
If you file for TN visa status at a port-of-entry, and you are denied the TN because the inspector does not think you qualify for the occupational category, or that the position is not a profession listed in NAFTA, then you may be allowed re-entry with a valid, unexpired OPT/EAD. The burden is always on the applicant to establish eligibility for an immigration benefit. So you may want to come equipped with back-up documentation to support your case for re-entry on the OPT/EAD (e.g. recent I-20 and/or employer letter requesting admission on OPT/EAD). If the denial is due to an immigration violation (e.g. overstay, fraud, or misrepresentation) or based on an allegation of immigrant intent, then the inspector may deny you entry under the OPT/EAD as well.
You can avoid the risk of being denied re-entry to the U.S. altogether by filing for a change of status from F-1 to TN visa status by using form I-129. In this scenario, you can obtain your TN by mail and not travel to the border. If the petition is denied, you should be able to remain in the U.S. until your OPT/EAD expires (plus the 60 day grace period). You may have to request expedited processing in order to ensure a quick approval of the TN. Otherwise, the petition may not be approved for several months, which would leave you without employment authorization once your OPT expired.