L1 -> TN switch via USCIS I-129

TNftw

TNftw

New Member
Hi all,

I'm currently in the US on a L-1A visa (240 day renewal extension period), and just filed via USCIS to get a TN approved (to switch to instead).

Assuming I get an approval (I-129/I-797B) from USCIS, I'm planning to fly to YYZ to activate the TN. I got a RFE to prove I abandoned a green card I received in 2005/6, which I addressed via the I-407 form I used when I voluntarily returned my green card in 2013.

Any recent experiences from anyone activating a TN at YYZ? I'm not expecting any issues, but also have heard an ocassional horror story of agents issuing denials as they readjudicate a TN despite approval from USCIS...
 
You should not have to go anywhere once your TN is approved, It will come with an I-94 attached, and that is all you need.
 
Thanks for the reply! My understanding is that I have to though, given that my L-1A (and associated I-94) has expired, no?
 
If you got an I-797B with no I-94 attached, it means your TN petition was approved as a consular processing case and you must leave and re-enter the US in order to activate the new status.

You would not have been eligible for change of status if the TN petition was filed after the expiration of L-1 status.
 
Yes, thank you - that's my understanding as well.

One brief follow-up question - if I understand correctly, the approval from USCIS means that they've adjudicated the TN visa itself, and when I go out of the country, I'm activating it (but it's not getting re-adjudicated).

I could only be denied entry on inadmissibility grounds, correct? (and I can't think of what those could be, given that I've never before had any issues entering the US)
 
Just to correct the notion, since another petition had been filed, and is in fact still pending, he was still in legal status even if the I-94 had lapsed, thus his approval notice could have a valid I-94 attached, if the petition was done correctly. However, the proof will be when the approval arrives.

In general, TN's approved by USCIS are rubber stamped at the border, but there is no requirement that they be. CBP officers often take the position that there was a reason why a TNer filed with USCIS, perhaps trying to circumvent CBP, and will look at your petition more closely.
Hopefully it will be moot if you get I-94. If you do need to go to the border, be sure you take ALL your paperwork for BOTH the L1 and the TN petitions to prove legality.

And cancel the L1 petition as soon as you get TN (unless you would prefer L1)
 
Thanks for the insights.

My (corp provided) immigration lawyers said that it's not possible to go for anything except consular processing (i.e. no I-94s). Does this seem right? I find it hard to argue with them without a more specific question to ask...
 
nelsona said:
Just to correct the notion, since another petition had been filed, and is in fact still pending, he was still in legal status even if the I-94 had lapsed, thus his approval notice could have a valid I-94 attached, if the petition was done correctly. However, the proof will be when the approval arrives.

In general, TN's approved by USCIS are rubber stamped at the border, but there is no requirement that they be. CBP officers often take the position that there was a reason why a TNer filed with USCIS, perhaps trying to circumvent CBP, and will look at your petition more closely.
Hopefully it will be moot if you get I-94. If you do need to go to the border, be sure you take ALL your paperwork for BOTH the L1 and the TN petitions to prove legality.

And cancel the L1 petition as soon as you get TN (unless you would prefer L1)
Click to expand...
The problem is that having a pending & timely filed petition does not mean a person has status. It means that they are in a period of authorized stay, meaning that it is legal for them to be in the US and in some cases they can continue working for a period of time, such as the OP who has a pending L-1 extension.

But in order to benefit from a change in status, a person must have status at the time of filing. It is not enough to be in a period of authorized stay at the time of filing. This is why the petition will likely not come with an I-94.

USCIS already made this policy explicit with respect to Adjustment of Status filings and I believe they also apply it to Change of Status. Thus, if the OP's lawyer had filed for a Change of Status, then USCIS would issue an RFE asking to choose between converting the petition to Consular Processing, or replying to the RFE after "maintenance of status" could be established (i.e. after the approval of the pending L-1 extension) in order to continue the Change of Status. I have seen reports of such RFEs on other forums.

The OP's lawyer likely filed for Consular Processing in the first place in order to avoid such delays.
 
Thank you - that link is super useful, and the approach makes sense now (i.e. highly likely no I-94).

I'll take all the paperwork I have with me, in case I get asked for any of it.

Can anyone suggest any tough questions I may expect? (so that I can think about how to best answer them)
 
With respect to the petition paperwork, it's unlikely for you to be asked any "tough questions". If they ask you anything, it will be things like: what kind of company is this? How big is it? What job did they hire you to do? In some rare cases, you can get a grumpy officer who will say something like "Couldn't they have hired an American to do this job?" If you get asked something like this, the important thing is to keep your cool.

If they ask any "tough questions", it is more likely to be related to INA 214(b). If they can bait you into saying that you're planning on staying in the US permanently, then you can be denied entry. You should anticipate questions related to this if you have already been in the US for a long time. For example, they may ask you something like "I see you've been working for this company for a long time, do they have plans to transition you into a more permanent status"? If you're asked such a question, you should be truthful but not say anything that can be used to deny you entry. For example:

"I don't have any plans to stay in the US permanently. I had a green card but I gave it up in 2013 because I view Canada as my home."

Or:

"Currently, my plans are to continue working for my employer for the next 3 years. I don't have any concrete plans regarding any further time horizon."
 
Thank you, this is super helpful. I've been in the US for just over 3 years now - is that considered long?

Besides my I-407, any other documents that I could bring as proof that I intend to leave (which I do)? I unfortunately do not own any property abroad.
 
But if and when the L1 Extension of Stay is approved, then the Change of Status to TN would have been filed while in status, so it can also be approved
 
TNftw said:
Thank you, this is super helpful. I've been in the US for just over 3 years now - is that considered long?

Besides my I-407, any other documents that I could bring as proof that I intend to leave (which I do)? I unfortunately do not own any property abroad.
Click to expand...
3 years would most likely not be considered very long, although it's still possible to be asked tricky questions.

You don't need to bring your I-407, although obviously if you want to, then go ahead. As far as I know, CBP has never expected people to show documentation to prove non-immigrant intent. As long as you answer any tricky questions "correctly", you should not have issues.
 
Brief follow-up with another question please!

USCIS has approved my TN (yay!), so I'll be heading out to activate it in the next few weeks. My immigration lawyers are planning to withdraw the L-1A renewal application as soon as I leave the US though, but haven't really been super clear as to why...

I was hoping to go activate the TN, then come back and finish the L-1A application (currently paused by a RFE) - is this not possible for some reason? (I haven't gotten a clear answer from my lawyers yet)
 
if you prefer to be on L1, there is no reason to withdraw your I-129 for L1 (actually it is their I-129). Your leaving US has no effect on an I-129, since it is their petition , AND there is no requirement to be in US to file or continue an I-129.
maybe they don;t want to answer teh RFE, or fear it will be denied (in which cse they should be withdrawing it TODAY, not sometime in future.
 
Thanks Nelsona. Can you please clarify your last statement? There is obviously alway a risk of denial (and especially these days) - what would a denial imply?
 
I'm also curious if you and/or wagecuck3 have any thoughts re: potential problems with me applying for the L-1A renewal at a consulate (vs. USCIS) *before* I activate my TN... Seems like a no-lose situation? i.e. if the consular L-1A isn't approved, I can just go on with my TN.
 
Cdns are not granted visas at consulates for statuses which they can get an the border, like TN and L1, so that would be a non-starter. But you could simply try to get your L1 at the border, if you prefer, instead of TN.

As to why you would cancel an unwanted petition, is the principle of "last action". If you get a status at the border, and then get a denail by mail later, the denial becomes the "last action" of the DHS, and you then must take some step(s) to rectify this (typically by returning to the border and re-entering on your "good" status.
 
Interesting! Are you sure Canadians can apply for L-1As at the border? That's the first I've heard of it, I thought only TNs could only be adjudicated at the POE?
 
Ah, you're right re: initial applications, but sadly not renewals... (recent change in CBP practice)
 
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