Currently on OPT, Chinese spouse, should I apply for TN status immediately?

Also note, to prove you son qualifies for TD status, based on your TN, you need to bring the original "long form" Canadian birth certificate (or birth certificate with parental information) as well as his Canadian passport (I am assuming he was born in Canada). If you don't have a original "long from" birth certificate, you can request one online. (at least in the Province of Ontario, not sure of others).
For myself I never heard of the "long form" birth certificate before I applied for TD for my child/teen. We had "wallet size" birth certificate. (not good for TD status, must show parents)
The "long form" birth certificate is the one you completed when you requested an Ontario birth certificate, after your child's birth, showing the names of both parents.
https://www.ontario.ca/page/get-or-replace-ontario-birth-certificate
 
Thanks guys, my son was born in China, we will bring his Chinese birth certificate. To be clear, we are all currently in the US under F1/F2, so we just need a visa for my wife to enter Canada and then come back for her TD. We want my son to have his TD in his Chinese (not Canadian) passport so that he could travel from China to the US directly.
 
I might be reading it wrong but your wife will need TD Visa from the consulate. She can't get it from the border. As for your son, I'm not sure if consulate will entertain his application if he's a Canadian too. This said, if you got TD for your son at the border on his Canadian passport, can he not travel from China on that passport?
 
Well that's interesting, we attempted to apply for a TD at the US embassy in Beijing by submitting the DS-160 and got nowhere. The application just sat and no one at the embassy will talk to us. The plan was for all 3 of us to go to the border and get TN/TD at the same time. We attempted to do this when entering the US in Boston but the CBP agents there told us explicitly that we must do so at an entry point from Canada (no idea if they are right or knew what they are talking about of course).

If by "consulate" you mean a US embassy/consulate in China, that would be pretty dismaying as we are already in the US and as I said, had no luck getting one from Beijing, but I did not actually have a TN at the time. So now we are saying that if I myself first go to the border and acquire a TN, my wife will be able to get a TD from the US consulate/embassy in China?

EDIT: as for my son, if he leaves China on his Canadian passport then he will need a Chinese visa to enter China again (or some kind of travel document from a Chinese consulate due to his age). It's a common problem for Chinese nationals, so we would prefer if he left and returned to China on his Chinese passport.
 
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He can leave China on Chinese passport. But when entering US, to get TD, he can (and in my opinion should) use his Cdn passport. His TD will be granted immediately at the airport in US.
When entering US in Boston, where were you coming from, ie which was the departure airport for that flight?
 
nelsona said:
He can leave China on Chinese passport. But when entering US, to get TD, he can (and in my opinion should) use his Cdn passport. His TD will be granted immediately at the airport in US.
When entering US in Boston, where were you coming from, ie which was the departure airport for that flight?
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We were coming from Beijing to Boston. The problem with leaving on a Chinese passport is that the Chinese authorities will check that you have a visa to your destination when leaving. Now to be honest I have never tried to leave china without a visa on a Chinese passport so I don't know if they will actually prevent you from leaving if you don't have a visa. So if the TD is only on the Canadian passport then he won't be able to leave China on his Chinese passport.

I guess you could work around it by getting a tourist visa to the US for the purposes of leaving China, or travelling to a third location and then going to the US from there.
 
I guess the best way for us to go would be for me to go get TN at the border and then for my family to get TD via i-539, but I don't know if that is possible.
 
I believe that has already been suggested to you, and is the simplest when you are all in US and cannot easily leave and come back.
btw, Your TN will be in your Cdn passport. How do you propose to travel back and forth from China? Your son will do the same.
 
I see, I just wasn't sure if me getting TN while my family was still on F2 would result in them being out of status or accruing illegal presence.

As for my travels back and forth to China, I have to get a visa. I'm not a Chinese passport holder, so I do not have any other options in any case.
 
Yes your family will be out of status once you get your TN if they do not get their TD and are still in the US. Their F2 status will no longer be valid once you switch over to TN.
 
Sm1smom said:
Yes your family will be out of status once you get your TN if they do not get their TD and are still in the US. Their F2 status will no longer be valid once you switch over to TN.
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OK, just to be clear because maybe I am not understanding how the i-539 works, but if the above is true, then it is not possible for us to use the i-539 , since there is no way for us to get TN/TD at the same time, even if I go get the TN and then file the i-539 on the same day?
 
your situation appears to be pretty complicated. I would recommend you speak to your future employer and request professional legal assistance, at no cost to you. If they really want to hire you they should be able to offer that.....
 
No expert, I’d think an i539 should be ok, but are you aware that they can take 4- 6 months to process? Do you really want to wait that long? Would also cause complications if you want to travel before approval.
I’d agree with amberleaf that you should ask for legal help from your sponsor’s attorney.
 
You are allowed some leeway when applying for TD with I-539, particularly if your current I-94 has not expired. It can be prepped and ready to send as soon as you get your I-94.

Susie, while yes it does take that long, since the spouse needs a consular visa the next time she leave US, what difference does it make? This keeps her in status until its suits her to leave. Approved or not she will need to go to consulate. and enter on TN at the border,
 
nelsona said:
You are allowed some leeway when applying for TD with I-539, particularly if your current I-94 has not expired. It can be prepped and ready to send as soon as you get your I-94.

Susie, while yes it does take that long, since the spouse needs a consular visa the next time she leave US, what difference does it make? This keeps her in status until its suits her to leave. Approved or not she will need to go to consulate. and enter on TN at the border,
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But he said they already tried at a consulate and were unsuccessful. You are saying they can go to any consulate wherever they travel and get that done? Obviously, if they can do that there is no problem.
 
SusieQQQ said:
But he said they already tried at a consulate and were unsuccessful. You are saying they can go to any consulate wherever they travel and get that done? Obviously, if they can do that there is no problem.
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To be clear, I did try at the embassy in Beijing, but this was to get both TD and TN at the same time i.e. I did not have the TN yet. If I already had a TN and it was just my family applying for TD, it might be different?

So to recap, currently my options are:

1) Get a Canadian visa for my wife and then fly to Toronto and then come back together. This was the original plan but based on the replies here it may not be possible. If it doesn't work then we all return to the US on F1/F2 and it would just be a waste of time.

2) GO alone to Toronto, get the TN, then apply for change of status to TD for the family while still in the US. I would prefer this as it would be cheapest and easiest. According to nelsona it is possible, but I may go ahead and get an opinion from a lawyer just in case.

3) Send family back to China, go get TN alone, then have family apply for TD at the embassy in China. No real risk I suppose but most expensive and unclear whether the embassy in China will grant the TD, or on what timeframe they would grant it.
 
Consulates do not typically do TN approvals, especially if one is already living in US. so that was why you were unsuccessful the first try. But once you get TN, the normal way, it will be a simple consular matter for your spouse to get TD.
1. I do not know why this was not considered doable. Your spouse would easily get a tourist visa to Canada.
2. This is doable, (you might even take your son with you for his TD) as I already pointed out. You would prepare the paperwork and submit I-539 immediately upon your return to US. There would still be a need at some point, for your spouse to get a consular visa (in Canada or china). Your son needs nothing special, but to arrive in US with the documentation described earlier.
3. Unnecessary in my opinion.

Another option is for your new sponsor to submit your I-129 *premium, processing" along with The I-539s for your family simultaneously. This is now most TNers with families apply for status in US. Sometimes USCIS will piggyback the TD approvals on your TN, but even if they don't, this would remove any dobt
 
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Re #1, someone earlier here posted that it was not possible for non-Canadian family to get TDs at the port of entry. Don't know if that's true but it sounds plausible.

The I-129 premium processing does sound like the right way to go about it. I should ask.
 
For option 1, your spouse would go to Canada to get a consular TD visa. under the 3rd country rule. Done all the time. Then she and your sone would enter US on TD status. I trust by now you know the difference between a visa (obtained at a consulate) and entry status (obtained at the border.
You and your son only require entry statuses. Your wife needs both.

Apply for status from within US (I-129/I-539) avoids the need to leave and get visa, Thought you would have explored this by now, given you
've been looking into this for 5 months!
 
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