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240 day rule

Discussion in 'TN Status' started by The Jake, May 16, 2007.

  1. The Jake

    The Jake Registered Users (C)

    Hey all,

    Where does this 240 day grace period rule come from? I hear it talked about all the time on the forums but havent seen where it's documented officially.

    I had an interesting experience travelling back from Canada this past weekend. I hold TN status which is valid until May 27th, 2007 and was attempting to re-enter the US on May 13th without an extension beyond what I held.

    I was told that since I was on an extension and had not left and re-entered during it's duration that I was considered to be on my previous (thus expired) visa and that I had been in the US illegally, then the border official moved me to the secondary inspection station. He also chastised me for not handing in my previous i-94 records when leaving the US but I have never done that and it has never been a problem before, he said I did a major no-no in keeping my older i-94.

    The Border guard in the secondary inspection area told me that I had to return to Canada before my current status expires unless I have a new extension in my hand, he said that if I go even one day without the extension they would revoke my TN the next time I crossed the border.

    He then admitted me to the US under my current status which was valid until may 27th. I would have thought that if I had indeed been in illegal status they would have immediately barred me from entry, was I ever illegal?

    This seemed to go against everything else I had read about TNs and wondered which was right. Am I still valid when I am here waiting for a extension to be processed?

    Furthermore, they did not stamp my passport upon re-entry and had me keep the old i-94 in my passport. I thought for sure they would at least take that i-94 since the previous guard made such a big deal about me having it.

    I know that if an extension is denied I would then have to return immediately to the Canada. What I wonder is whether it would affect my ability to re-enter on a new petition after I got there? This experience now has me a little paranoid about what I need to do, can I wait on extension or do I need to do an extension at the POE before my current one expires?

    I stayed in the US last year while my extension was pending, under the premise that I was covered by the 240 day rule but now have doubt about doing it this year.

    I just got a really weird feeling from the whole ordeal and am going to call USCIS and USCBP to figure out what to do but wanted to get your opinions too.
     
  2. bigboy00

    bigboy00 Registered Users (C)


    No, you are not present illegaly in the US. I am not sure why the border officials harrassed you. This 240 day rule is official and it is documented and (if I am not mistaken) Nelson had posted it before (may be on a different forum). Yes, this rule DOES exist.

    But if you leave US when your extenson is pending, people get a new TN at the border (because I have heard that if you leave US while your extension is pending, the extension application may be considered abandoned). May be that is the reason why you faced what you described above.

    When I was on TN, my lawyer always advised me against travelling outside US, when my extension application was in process.
     
  3. sshakeny

    sshakeny Registered Users (C)

    if you know your way around the lawbooks look up 8 C.F.R. §§274a.12(b)(20)... but remember this means that if you filed for an extention of the employment before expiration, you can continue to work (not to travel) while you are waiting for an decision on your extension application
     
  4. nelsona

    nelsona Registered Users (C)

    As was mentionned, the grace period, during which you have an expired I-94 but are considered to be in legal status only applies under the following considtions:

    (a) your I-129 (or I-539) was submitted prior to the previous status expiring.
    (b) for I-129, it must be for the same working status and
    (c) you must still be in US after first status expires. Once you leave the grace period vanishes.

    Your boreder guard was obviously trying to rattle you, since your original TN was still valid. Why would you hand back a valid multiple entry I-94?

    Now, if this was JUNE 16th rather than may, then you would absolutely need the extension in hand, or apply for new TN.

    On the question of leaving US while an EXTENSION is in progress (you see I-129 is not a change of status), there is nothing preventing you from doing this, and it has no impact on your I-129. As long as the I-94 on the I-129 matches the I-94 that you previously had, you are absolutely fine. That is why Cdns travelling to canada do not give up their I-94, it's an advantage.

    Another thing to rememebr is that CBP is NOT USCIS, so rules regarding I-129 are not really clear to them.


    ... and the 240 day rule is black and white law. The reason many lawyers tell you not to travel during this time is because they are thinking about H1, which can't be adjuducated at the border, unlike TN.
    http://ecfr.gpoaccess.gov/cgi/t/tex...div8&view=text&node=8:1.0.1.2.54.2.1.1&idno=8

    8 C.F.R. § 274a.12(b)(20)

    (20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision
     
  5. The Jake

    The Jake Registered Users (C)

    thanks for the replies, really appreciate the details that went into them.

    so, by the definition of the 240 day rule I take it that once I have submitted the extension I am covered for 240 days or until I receive a decision. If the decision is approval I continue about my 1 year period, if it's denial I must leave immediately but will not be considered to have been illegal during the timeframe that I waited for the decision?

    also, re: submitting an extension application before the current status expires

    How is this determined? My HR official told me they mailed this out over a week ago, but without any type of tracking on the application, how can I verify that they received it? I know receipt notices can sometimes take 6 weeks or more.

    Would it be better to use the e-filing for i-129? does that guarantee that they have on record that I applied for extension before the status expired?

    While I am at it, I am in Fort Lauderdale, if I had to leave and re-enter, do I have to re-apply at a POE from my home country (Canada) or can I go to the bahamas for a long weekend and get it on my way back from there?
     
    Last edited by a moderator: May 16, 2007
  6. nelsona

    nelsona Registered Users (C)

    Regardless of how long the notice takes, the receipt date will be the date they received it.

    Most send their I-129 with a return receipt, for that very reason.

    The 240 days starts when your old TN expires. If your TN is denied, you will only be considered out-of-status from that day. If your I-129 was submitted late, you are considered out of status from the day your old TN expired.

    I don't see a sceanrio where a TN would be approved without an I-94 attached. If an I-94 is attached, you will not have to leave US. If your TN is not approved, or if you leave US before approval, you will need to enter US and get a new TN, with all your paperwork. This re-entry can be anywhere, from anywhere. The port at FLL is as good a place as any.
     
  7. TNDV2008

    TNDV2008 Registered Users (C)

    I would never travel to Canada (i.e. cross the border) whenever my TN is within 30 days of expiry...unless I was getting it renewed at the POE.

    That being said, I **always** travel with all my documents (degree, transcripts, employment letter) to protect myself from potential harrasment.

    BTW, I requested my company lawyer to write another letter that I always keep in the package, that quotes the exact section of INS rules (8 C.F.R. § 274a.12(b)(20))...should some "i-am-having-a-bad-day" officer hassle me.
     
  8. sshakeny

    sshakeny Registered Users (C)

    nelsona, i would recommand returning the I-94 because that is the process and they are not so kind on people who dont follow the rule. if they give you a multiple entry I-94, their system shows that you have a multiple entry visa. i would say not returning the I-94 is like playing with fire and all it takes to spark a major problem is to hit the unfriendly border agent and they could do damage. other than that i couldnt word the 240 day rule better than your post. good job my friend
     
  9. nelsona

    nelsona Registered Users (C)

    I would go so far to say that one should never hand back an unexpired I-94 issued for TN purposes, unless one is no longer working for the sponsor.
     
  10. sshakeny

    sshakeny Registered Users (C)

    ;)
    i'll take your word for it;)
     
  11. The Jake

    The Jake Registered Users (C)

    So, because my extension application was sent in at the beginning of May; I am considered in status until I hear otherwise or 240 days pass.
     
  12. nelsona

    nelsona Registered Users (C)

    I thought you said that you were at the border on may 13th. If you submitted your TN and then left US, you face the possibility of rejection, if they can link the two events. This is unlikley due to the fact that you still have your original I-94

    Otherwise, for 240 days past the expiry of your current TN you are considered to be in TN status. Your receipt is proof legal status, so hold on to this when you get it from your employer.

    If you leave US after your current TN expires, your grace period ends, and you have to get your TN at the border. you should bring all your documanation for a border TN, plus the copy of your receipt notice for the extension, which will be of little use at this point. Just before applying for new TN, it is good practice to ask the officer to check on the status of your I-129. If it is approved, you can enter on that.

    If not yet approved, you would get a new TN, and then you would contact the service center your I-129 was sent to and formally cancel the I-129, in order to avoid risk of having it rejected, which would put you back out of status.
     

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