Question: I was recently denied a TN visa application at the border. I now want to enter the U.S. under TD status, and then re-file for my TN by mail. Can I do this?
Reply: The TN visa regulations do not prohibit an individual from taking two bites at the "TN Visa apple" and applying for a TN visa by mail (i.e. a change of status) after receiving a denial at the border.
However, such individuals should be aware that USCIS (the agency that adjudicates I-129 petitions requesting TN visa status) will likely have access to the initial TN decision made by USCBP (the agency that adjudicates TN applications at the border).
According to a recent AILA liaison meeting, USCBP informed AILA that the agency uploads TN and L-1 visa application denials to a database that is accessible by USCIS (i.e. the DHS’s Treasury Enforcement Communications System, or TECS). Upstate NY AILA/CBP Meeting (March 28, 2011).
Individuals should, therefore, expect USCIS to be aware of any prior TN visa application denials, and be prepared to address in a response to a Request for Evidence (RFE) whatever issue that had led USCBP to deny the TN application in the first place.