I-129 Petition for new TN while in pending B-2 status

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Buhayhay

New Member
Good day,

In a scenario where you are in pending B-2 status (I-539 change of status application is pending approval), can you apply for a new TN (with a new employer) via an I-129 petition through USCIS.

My lawyer has indicated that in this case, one would need to apply for the TN at the border as the I-539 application must be approved first before the TN petition can be approved.
 
Yes, correct. I am just trying to determine whether it is possible to apply for the TN in country or whether I have to leave and apply at the border.
 
Buhayhay said:
My lawyer has indicated that in this case, one would need to apply for the TN at the border as the I-539 application must be approved first before the TN petition can be approved.
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I think what your lawyer implies is: If your 539 is approved (for B2) after your TN approval, the B2 status would override TN status.
 
I think what the lawyer is saying is that the COS to TN depends on the previous COS to B2 being approved, because you need to be in status when COS is filed, and since the COS to TN was filed after the previous status expired, only if the COS to B2 is approved, would you considered to be in status at the time the COS to TN is filed. So if the COS to B2 is denied, the COS to TN cannot be approved, which makes sense.
 
bigboy00 said:
COS to B2 was filed (not TN).
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The I-129 would be a COS to TN.

Leaving and re-entering on TN makes sense, as it would not depend on the approval of the COS to B2, whereas a COS to TN would depend on the approval of the COS to B2.
 
But be sure to withdraw ANY pending I129s when you get the border TN. Do not rely on "automatic" cancelation of COS just because you crossed.
 
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