Previous Attorney Misguided Me TN Visa

S

Scrubz

New Member
Hello All,

I find myself in a very serious problem and I would be lying if I said I was not worried. Here is what happened:

I got a new job offer in October of 2017 which I accepted. I consulted with my lawyer on how to proceed to which he told me that I would need to get a new visa. He filled out the DS-160 and booked my interview at the consulate in Mexico City.

I flew to Mexico City and while I was there he contacted me again stating that there was a new clause and that I no longer had to apply for a new visa and that I could freely change employer as long as I was working a high-skilled job and the same profession stated in my visa. He directed me to the 9 FAM 402.17-5(A) Employment section of the NAFTA Professional Agreement. He also personally wrote and signed a letter stating that what he was saying was true. Me not having any legal knowledge believed him.

I notified my new employer about this and they agreed with his decision. They indicated that I would have to get e-verified on my first day, which I did.

Present day, my visa expires July 02. I contacted HR about my visa renewal. After a few emails with the person that oversees anything dealing with international employees I find it that she was never notified about me being on a TN visa. She contacted with employers legal consultants and they notified me that indeed I should have gotten a new TN or at least filed a change of employer at a point of entree. At this point we both realized that my now ex-lawyer misguided me.

Luckily I had the letter the lawyer wrote signed by him, the email exchange with HR, etc. to prove that I did not willingly did any wrong-doing. My HR and manager department understood. They indicated that they had to terminate me immediately but that they wanted to rehire me and would sponsor my new TN Visa.

I am currently filling out my DS-160 to go ahead and schedule my visa appointment. My employers legal consultants have advise me to obviously tell the truth to the consulate officer of what happened (that I worked from November 2017 to March 2018 for different employer that the one stated on my visa) and to answer YES on the "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" question. They are completing a package for me to take to the interview including all the necessary paperwork.

My question is: what possible repercussions can this have? Will I get the chance to explain my situation and present the evidence I have (ex-lawyer's letter and emails)? Could I get the 3 Year Ban for working under a different company for less than a year? Could I be permanently banned from the US?

Sorry for the long explanation but as you might tell it's a complicated situation.

Thanks for taking the time to read all of this and any advice you can give.

TL;DR I was misguided by my previous attorney about what to do when changing employers. I have evidence to prove this. What can happen?
 
- Were you previously on TN and then you accepted a new job offer (that required TN)?
- Did you already have a (consular) TN visa that was valid at that point?

If answer to both these questions is "yes", then most likely your lawyer asked you not to appear for the new (consular) visa - since you already had a valid visa stamp in your passport. But, you DO require a new TN authorization for the NEW employer.

You say in your post that "I notified my new employer about this and they agreed with his decision." then you also say that "she (your HR) was never notified about me being on a TN visa". How is this possible? Didn't you fill the I-9 on your first day of the new employment?
 
bigboy00 said:
- Were you previously on TN and then you accepted a new job offer (that required TN)?
- Did you already have a (consular) TN visa that was valid at that point?

If answer to both these questions is "yes", then most likely your lawyer asked you not to appear for the new (consular) visa - since you already had a valid visa stamp in your passport. But, you DO require a new TN authorization for the NEW employer.

You say in your post that "I notified my new employer about this and they agreed with his decision." then you also say that "she (your HR) was never notified about me being on a TN visa". How is this possible? Didn't you fill the I-9 on your first day of the new employment?
Click to expand...

- Yes, I was previously on a TN visa when I accepted the new job offer.
- Yes I has a valid TN visa at that point.

My previous attorney asked me to not appear for the new consular visa AND also told me that I did not have to get authorization for the NEW employer. That I could freely change employers. I have a letter signed by him stating so.

I did fill the I-9 through WorkDay (a portal the company uses for employee information and records. I presented my I-94, foreign passport and TN stamp on my first day. Our HR department is located in a different state, the person that usually handles sponsorships and visa renewals was not involved at any point in my hiring process. The people that were involved in my hiring process never notified her of my status.
 
As was previously said, for Mexicans, your TN is comprised of a VISA, for entry into the US, and an I-94, which is your work authorization.

The lawyer was correct in saying that you did not need a new visa if your changed TN jobs, in that the visa is not sponsor specific. In fact, if you stay in US, you can remain in US indefinitely without ever renewing your visa. That is true of almost all non-immigrant statuses. There was in fact no reason for you to leave US simply to get a consular visa. HOWEVER, you must ALWAYS have a valid I-94, or a pending I-129 to remain in legal TN status, and you must have a specific I-94 in hand to work for any and each TN sponsor. That was where the lawyer's interpretation was faulty. You are freely able to change employer without getting a new visa, but you do need to obtain a work authorization (by mail-in or at the border). And this is where you failed to follow the law.

So, while in US, the state of your visa is immaterial. It is the I-94 which is all-important, and you did not have an I-94 for your second employment, and thus worked there illegally (ie. your employer hired you illegally).

Unfortunately, now you DO need to leave US in order to get a new work authorization, since you are not in legal status and cannot do a mail-in I-129, and presumably your old TN visa is no longer valid, so you must appear at the consulate and answer YES to having perform illegal work.

That is why lawyers should not be involved in the TN process, as it was intended to be.
 
I noticed that your consular visa stamp has not expired. Since at least 2016, Mexicans with a valid visa, can get a new TN at the border without appearing at the consulate, by presenting TN paperwork (letter, education, etc). So in my opinion, you could "get legal" without a consular visit, and then fight than battle later, once you've shown that you were willing to get legal, and were only illegal due to incompetent legal representation. The CBP is unlikely to ask you if you have worked illegally. the consulate obviously will.

https://www.tnvisabulletin.com/change-or-addition-tn-employer/:

USCBP has stated that Mexican citizens who possess a valid TN visa stamp may change employers at the border by departing the U.S. and presenting to USCBP a support letter for the new employer. AILA CBP Practice Pointer, AILA Doc. No. 16091302 (Sept. 13, 2016). ​
 
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Thanks for the response Nelsona.

The law firm my employer hired has decided to file a petition with USCIS using premium processing requesting a "nunc pro tunc" period of approval- so they would ask for approval back to November 2017 when I began working for them and to "forgive" the period of unauthorized employment as it was due to an incompetent lawyer and HR department.

Anyone has experience with this? Any advice? The only thing I have going for me at this moment is that I have evidence that that my previous attorney misguided me and that I filled out and completed the I-9 plus E-Verify process.

At this point I just feel like giving up and taking the 3 year punishment that will likely come out of this.
 
So they are coming to their senses and not making you leave the country. ‘Bout time.
You are into some deep legal waters which are not the subject for here.
You can search this site for nunc pro tunc and see what you get.
 
USCBP has stated that Mexican citizens who possess a valid TN visa stamp may change employers at the border by departing the U.S. and presenting to USCBP a support letter for the new employer. AILA CBP Practice Pointer, AILA Doc. No. 16091302 (Sept. 13, 2016).

Do they have to follow the same process like getting new TN visa,fill DS-160 and book appointment,or they simply go to USCBP and present all the required documents?
 
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