In an earlier post, I discussed the scenario where an individual who received a denial of his/her TN visa application at the border, and who was otherwise admissible to the U.S. under another visa classification (e.g. TD, H-4, or F-1), could take a second bite at the "TN Visa apple" and apply for a TN visa by mail (i.e. a change of status) with USCIS.
In a recent AILA liaison meeting with CBP, the Detroit CBP office stated that if a TN visa application was denied at the border, the applicant could file a TN I-129 petition with USCIS, and CBP would honor USCIS' decision if the agency approved the petition. AILA/Detroit CBP, AILA InfoNet Doc. 12041148 (posted 04/11/2012). However, the Detroit CBP office added that it “always has the authority to review admissibility” and that if it adamantly disagreed with USCIS’ decision to approve the TN visa petition, it would refer the case to a U.S. immigration judge. Id.
This is a standard CBP response, i.e. the agency always feels that it has the authority to revisit a previously approved TN visa application whether the matter was approved at the border, the U.S. Embassy/Consulate, or by USCIS. The question is whether or not CBP exceeds its authority when it denies admission to a previously approved TN visa worker, or revokes that individual’s TN visa status. It is also unsettled as to what manner of relief is available to TN visa workers whose status has been revoked by CBP in this manner.
For example, are such individuals to be placed in removal proceedings before an immigration judge as suggested by the Detroit CBP office? Or is the matter only to be resolved through CBP? The little guidance on this issue is not entirely clear (see, e.g. INS NAFTA Handbook, pg. 127; and Pearson Memo, 05-25-01). The Pearson Memo – the more recently issued guidance – suggests that a hearing before an immigration judge is no longer available in this scenario.