I539 out of time

viajero

Registered Users (C)
I need some help here

I am in the process of renewal my I94 (I129) because I switched my employer. Unfortunately with all the paperwork, I forgot the renewal of my son I-94 (April). Is there anything I can do now?, what could be the process to do so.....


Please, anyone who can help me out.

Kind regards,
 
I'm not understanding why you would be RENEWING an I-94 BECAUSE you switched employer. That doesn't make sense. New employer means new TN. TN extension means you are currently working under avalid I-94 withe the same employer.

Did you mean, (A) you need a NEWI-94 because you WILL change employer, or did you mean, (B) you got an new I-94 with the new employer a while ago, and now you filed for an EXTENSION?

I ask, because if your son's I-94 (in TD status) has not expired, then he is still in TD status, because you are in TN.

If not then he is out-of-status, and is ineligible for file I-539, and would need to get a new I-94 (and a new visa) by leaving US.
 
The problem with this, is that your son is inlegible for a new TD if your TN is not yet approved. So, you may need to premium your TN, so that he can use the approved TN to get his TD visa and I-94.

That was a big oversight on you and your employer's part.
 
Nelsona,

Thanks a lot for you quick response.

According with what I have read on this forum I have two options to renewal or extend my stay in US.
Go to mexico and get a new TN visa or
stay in the US and filled out one I129.

I decided by the second one.

I filled out an I129 when my I-94 was still valid, but by mistake I did not renewal my son´s I94 (form 539 extension of status) at same time. he arrived several months later than me, but the expiration date was the same as mine. (This was the error)

My change of employer (I129) is in process but my son is now out of status. I am worry because if we travel to Mexico to get the TD visa and myself the TN visa, this could be denied to him because he stayed in the US more than permited (out of status) or the migration officer at point of entry could denied the entrance for same reason.....and that would be very bad.

I am trying to take my wisest decision.

What would be your best recommendation?

Thanks again Nelsona
 
Just to clarify, your son's original TD could only be granted until the expiry date of your old TN, There was no error in his expiry date, it matched yours.

So just to recap
You have had 2 I-94s:
Your original one which expired in April 2014 "OLD TN"
A current one which you obtained by I-129 "CURRENT TN" (I assume you are still working for your old employer? What is its expiry date?)
And now you are requesting a new I-94 so that you can begin a new job "NEW TN"

Is this correct?

like I said, your son CANNOT file I-539 at this point, since he is out of status. He must do something before he reaches the six month mark (that is six months after his TD expiry date), or he could be barred.

That means, if you are still working for your old employer, he goes NOW and gets a new TD visa at consulate and enters on a new TD, based on your CURRENT TN. It will be good until the date on your CURRENT TN. Of course, if you leave US you would also need to get Visa based on your CURRENT TN.

OR
He waits until need to get your TN approved, and then have your son exit US and return after getting a TD visa at the consulate and then entering on TD, based on your NEW TN. It will match the expiry of your NEW TN. Again, if you go you will lalso need a new visa, but based on your NEW TN .

Most importantly You MUST NOT let his days of unlawful presence extend past 183 days, which began in april!

However I don't see any need for you apply for a new TN in Mexico. You have filed I-129, and should let that take its course. Then go to Mexico and get visa stamp at the same time as your son.
 
thanks again Nelsona, Much more clear now....
Just to answer your questions...

I assume you are still working for your old employer? What is its expiry date?)

I send my documents ending March, and I my first I129 is still in process. (that is what is says in the web page)
I switch my job by June, so I send in June another I-129 and also is still in process.

So if these 2 are still in process, can he go to the consulate and get a new TD?, but how can he get a new TD if my TN is void?. (My TN expired on April that´s why I applied with a I129.

Thanks Nelsona!!!!!!
 
I think you (and your new employer) need to see an immig lawyer. You have bigger problems than your out-ot-status son. Right now, you risk getting kicked out for working illegally.

You cannot work for your new employer until the June I-129 is approved!!! Who told you you could do this? What is your new employer using to satisfy e-verify and I-9 documentation?!

You are only currently authorized to work for the first company, based on the pending RENEWAL I-129 (240 day grace period after old one expired) . You cannot never work for a new company based on a pending NEW TN. It must be approved first. From what you say, it is quite possible that USCIS has suspended processing of the March I-129 when the June I-129 came along (but that is just a guess on my part).

As I said above now twice, your son can only get a TD visa, and enter US with you holding an APPROVED TN, which you currently do not have.
 
Nelsona,

Thanks again for all your assistance. We have already consulted and immigration attorney and his recommendations was:
Prepare documentation including a new employment letter, a letter explaining how all this issues came up (by attorney), all requiered documents and with all these package they will do the appointment at the Mexico city Embassy for a new TN-TD application. This should be done immediately.

What is your opinion about this? Do you think that all this could help to fix this situation...

Thanks again
 
How are you going to justify your illegal work for the last 3 months? That was not the fault of any lawyer.
 
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