USCIS has announced that beginning Oct. 1, 2012, Canadian citizens can now file their initial applications for TN visa status by mail from outside of the U.S. using Form I-129. This change is part of the Beyond the Border initiative, a joint program between the U.S. and Canada that seeks to expedite lawful trade and travel. As this initiative is between only the U.S. and Canada, citizens of Mexico cannot take advantage of the new TN filing procedure.
Previously, the use of the I-129 petition mail-in process was limited to individuals already present in the U.S. who were seeking a change to TN status or an extension of TN status. This rule change now allows individuals who are outside of the U.S. to utilize the I-129 petition process for their initial TN visa status. Current processing of TN applications by USCBP at the border is not only unpredictable, but also frequently conducted in a hostile environment. Providing individuals the option of choosing USCIS, which is more accustomed to processing employment applications, to handle initial TN petitions should add more uniformity to the adjudication process.
USCIS has not made any indication that these new TN I-129 petitions will be processed any faster than other I-129 petitions. In order for this program to have any real practical effect, employers will likely need to request premium processing of the I-129 petition to receive a decision within 15 calendar days. Otherwise, the petition can take 2-4 months to be reviewed under regular processing. It is not yet clear whether the filing fee for this process will be the normal I-129 petition fee of $325, or if individuals will only have to pay the $50/$56 filing fee at the border.
Upon approval of the I-129 petition by USCIS, individuals may then present their I-797 approval notice at the border for admission to the U.S. USCIS advises that applicants have on hand a copy of the complete I-129 petition and any supporting documentation for review by USCBP. That USCIS appears to leave open some review to USCBP is somewhat concerning. This new program will only be successful if USCBP respects and defers to USCIS’ approvals of these TN petitions. If border officers attempt to re-adjudicate the I-129 petition during the admission process, then they will have defeated the purpose of the initiative, which seems to be an attempt to take USCBP out of the adjudication process in order to add uniformity and efficiency to the processing of applications for TNs.
UPDATE - Nov. 27, 2012: In a recent AILA liaison meeting with CBP top officials, the agency stated that TN I-129 petitions approved by USCIS “will not be re-adjudicated per se” by CBP border officers. However, CBP added that all individuals seeking admission to the U.S. including TN visa workers are still subject to inspection at the border, and that “as part of that process, CBP officers will still ask questions.” AILA/CBP Liaison Meeting, AILA InfoNet Doc. No. 12112648 (posted 11/26/12).
UPDATE - Nov. 6, 2014: In another AILA liaison meeting - this time with the Buffalo, NY CBP Office - CBP officials again confirmed that CBP does not intend to readjudicate I-129 TN petitions that were approved by USCIS. However, as indicated above, CBP stated that it "will question applicants regarding their admissibility and any other issues they deem appropriate." AILA/Buffalo NY CBP Liaison Meeting (Oct. 20, 2014).