USCIS Denial of TN Visa I-129 Petition
Canadians (from outside or within the U.S.) and Mexican Citizens (only from within the U.S.) may file for TN visa status by mail using Form I-129. The following provides an overview of what happens if USCIS denies the I-129 petition.
Requests for Evidence
If USCIS believes that an individual's I-129 petition has not fully established his/her eligibility for TN visa status, it will generally first issue a Request for Evidence (RFE) before denying the petition. USCIS Memo (Feb. 2005). In some instances, e.g. where it is clear that an individual would not qualify for TN status even if given the opportunity to provide additional information, USCIS may deny an I-129 petition outright without issuing an RFE. Id.
In the event USCIS denies an I-129 petition requesting TN visa status, USCIS has stated that there is no right to file an appeal to the Administrative Appeals Office, a purported independent office. For example, under the extension of status regulations, the government does not allow an individual to file an appeal from USCIS' denial of an I-129 petition for extension of status. 8 C.F.R. § 214.1 (c) (5) (2010). The Administrative Appeals Office has specifically applied this rule to TN visa extension of status petitions, and has rejected appeal requests for these petitions. See, e.g. In re X, LIN-04-165-52390 (AAO 7-25-2005).
An employer may, alternatively, file a motion to have the petition re-opened or re-considered by USCIS if the employer believes the agency misapplied the law, or there is new evidence that warrants an approval. Generally, such motions must be filed within 30 days of the date of the decision denying the petition.
Status Following a Denial
Unless an individual still has time remaining on his/her TN visa status, or other non-immigrant visa status, the effect of an I-129 petition denial may result in the individual no longer having any status to remain in the U.S. Remaining in the U.S. after the denial may lead to immigration penalties. Additionally, in and of itself, the filing of a motion to re-open or re-consider a denied I-129 petition does not provide an individual with any legal status to remain in the U.S.