Question: I have a follow-up question to your post on TN visas vs. F-1/OPT. I am a Canadian citizen and have just completed my Masters in Social Work. I am currently on OPT status and am looking for employment. My question is, once I find a job and begin working, can I switch my status to TN while remaining in the US? Will I be able to switch to TN while I am employed on OPT?
Reply: Individuals working under F-1 OPT status may be able to change to TN visa status by mail using form I-129. However, one main requirement of the change of status (COS) procedure is that the individual is maintaining his/her current immigration status. Individuals who have fallen out of status (e.g. H-1B workers who have been terminated or resigned), violated status, or whose status has expired (i.e. I-94 expired), may not be able to take advantage of the COS process.
One main requirement for F-1 OPT workers is that they cannot be unemployed for more than 90 days (or 120 days if they have an OPT STEM extension). See ICE OPT Policy pgs. 15-16; 19-22. F-1 OPT workers who have exceeded the period of unemployment may not be able to take advantage of the COS provisions if USCIS (the agency that adjudicates the COS petition) determines that a status violation has occurred. The issue may come to light as USCIS generally requires that COS applicants submit copies of recent pay stubs to verify that the individual was maintaining his/her prior immigration status.
F-1 OPT workers who have not reached the 90 day period of unemployment may still be able to file for a COS, but it is possible that USCIS may request proof that the individual did not accumulate over 90 days of unemployment. Individuals who cannot utilize the COS provisions to file for their TN visa may have to apply for the TN at the border (Canadians) or U.S. consulate/embassy (Mexicans). However, such individuals may also have to address any status violations during this process as immigration officials will want to verify that they are not subject to any grounds of inadmissibility.