Question: I came across your website and found it very helpful. I'm a Canadian citizen currently living in the U.S. under Optional Practical Training (OPT), but it expires in June. I'm a social worker and would like to obtain TN visa status. Do you recommend applying in person at the border or submitting the forms by mail? If my OPT expires in June how long before it expires should I apply?
Reply: For individuals currently in the U.S., assessing whether to apply for TN visa status by mail or at the border involves several considerations. Two of the main issues are: (i) is the individual eligible to apply for the TN visa by mail under the change of status procedure? (ii) is there sufficient time to obtain approval of the TN visa petition to avoid any gap in employment authorization?
Individuals who are presently in the U.S. under valid non-immigrant status like OPT may apply for TN visa status by requesting a change of status by mail with Form I-129. A change of status request requires proving two elements: (a) establishing that the applicant has maintained his/her current non-immigrant status and has filed the I-129 petition prior to that status' expiration; and (b) that the applicant meets the requirements for the new non-immigrant visa classification requested. Individuals under F-1 OPT status need to provide proof that they have maintained that status. This may include copies of an I-94 card, I-20 form, EAD card, and recent paystubs. If an individual has not been maintaining his/her F-1 OPT status, or has filed the I-129 petition late, a change of status request may be denied. Such a status violation not only precludes the use of the change of status procedure, but can also jeopardize the filing of a TN visa application at the border.
If an individual is otherwise eligible to apply for a change of status, he/she may file the I-129 petition within 6-months of his/her current non-immigrant status’ expiration date. It is important to file this petition as soon as possible. An individual may remain in the U.S. while the I-129 petition is pending (even after the OPT expires). However, once his/her OPT expires the individual will lose his/her employment authorization. The individual would not be able to resume employment until the I-129 petition is approved. USCIS is processing TN visa I-129 petitions in about 2-months. Individuals can request expedited processing of a TN visa I-129 petition by using form I-907 and paying an additional filing fee of $1,225.
A third issue to be aware of is travel. Individuals who have pending I-129 petitions requesting a change of status cannot depart the U.S. Otherwise, the petition will be deemed abandoned.