TD Application Jeopardizing TN

S

superjk

Registered Users (C)
I am a Canadian citizen who is currently residing in US on TN status. My employer filed a TN extension for me by mail and was approved in April. My wife is a Chinese citizen living with me in US on TD status. Her TD status will expire on July 18th, 2009. I took her to the US/Canadian border today to apply for a new I-94 card for my wife based on my approved TN extension but had a very bad experience. First of all, the CBP officer said it is too early to apply for a new TD since there are still three weeks left on her current I-94. He told us to come back after at least two weeks. Second of all, he did not seem to honor my TN approval from USCIS. I detached the I-94 that came with the approval notice and stapled it on my passport right next to my original I-94. I kept the information stub that came with the approval notice separate from my passport. I gave the CBP officer a photocopy of my entire TN approval notice, my passport with the new and old I-94s attached, and the information stub that came with the approval notice but he said I was supposed to bring the original copy. He also said I was not supposed to detach the I-94 card that came with the approval notice myself. The CBP is supposed to detach it. Lastly, he said when my wife applies for her new TD, they will re-evaluate my TN application which requires me to bring the entire application package to make sure I still qualify for the job. This makes me very worried. The whole reason my employer applied for TN extension by mail is so I don't have to face the CBP myself. My wife has a TD visa appointment at US consulate in Vancouver on August 10th and she will have to exit US and re-enter. We also purchased our plane tickets to China scheduled for end of August. I am really worried that when my wife seeks admission on TD at the border, the CBP will re-evaluate my TN application and deny our admission request if he finds there is any reason to deny. What should I do to minimize the risk? I was thinking about the following options:

1. File I-539 for my wife to extend her TD. When she goes to US consulate in Vancouver to apply for her TD visa, I will not accompany her. Will CBP deny her admission when she tries to re-enter US on a new TD visa stampped on her passport because I will not be there with her? Will they still re-evaluate my TN application when I'm not the one seeking admission?

2. Have my employer file H1B for me. I am hoping the quota has not been reached yet. If I get a H1B, I don't think CBP can re-evaluate an approved H1B status holder. My wife can therefore get a H4.

The bottom line is I do not want the CBP to re-evaluate my TN application when my wife seeks admission on TD. This will make my TN mail-in approval pointless and we risk being denied.

I really appreciate those who read this and hope to get some genuine opinions on what to do in this case. Thanks in advance.
 
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A1: USCIS can deny her TD application. They have complete power to do so. Whether they deny her just because you were not with her, that remains to be seen. I personally do not think so, but one never knows.
A2: POE officers can deny entry to H-1B visa holders. Just like overseas consulates can ask USCIS to re-evaluate approved I-797s, POE officers can deny admission to approved H-1B, L-1A/B, TN/TD status holders, etc.


superjk said:
1. File I-539 for my wife to extend her TD. When she goes to US consulate in Vancouver to apply for her TD visa, I will not accompany her. Will CBP deny her admission when she tries to re-enter US on a new TD visa stampped on her passport because I will not be there with her? Will they still re-evaluate my TN application when I'm not the one seeking admission?

2. Have my employer file H1B for me. I am hoping the quota has not been reached yet. If I get a H1B, I don't think CBP can re-evaluate an approved H1B status holder. My wife can therefore get a H4.
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Triple Citizen said:
A1: USCIS can deny her TD application. They have complete power to do so. Whether they deny her just because you were not with her, that remains to be seen. I personally do not think so, but one never knows..
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It is CBP, not USCIS. The reason I may not accompany her is so that CBP will not re-evaluate my TN when my wife seeks admission. Am I right? I'm hoping they'll just give her a I-94 and let her in after giving CBP a photocopy my TN approval notice.

Triple Citizen said:
A2: POE officers can deny entry to H-1B visa holders. Just like overseas consulates can ask USCIS to re-evaluate approved I-797s, POE officers can deny admission to approved H-1B, L-1A/B, TN/TD status holders, etc.
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Right, that's unless there is some other reason for the POE officers to deny it. H1B application is not CBP's jurisdiction.

So, my question lies still. What's the best approach to avoid re-evaluation of my TN when my wife seeks admission on TD?
 
I thought it is not supposed to be like this. As long as I have a valid TN even from mail-in application, the CBP should let my wife in on TD without re-evaluating my TN. Should I file I-539 for my wife to keep her in status and wait for the I-94 that comes with the approved I-539 to avoid the re-evaluation from CBP? My wife still has to go to Vancouver for her visa appointment on August 10th. I-539 may not be approved by then. This really stresses me out. Any other opinions from anyone?
 
The officer was obviously having a bad day, as CBP is NOT supposed to detach the I-94 from the I-797. In fact, it is your employer who is supposed to give it to you, already separated, so he was quite simply full of it and just wanting to give you a hard time.

Nor will they re-evaluate your TN. I hopr you got his badge and report him to his supervisor. Some other mouth-breather in his family must have just lost their job, so he's pissed off.


She will have no problem getting TD visa, nor will she have problem re-entering on new TD status, with or without you. Nor will you have any further problems. This guy was just going a little berserk. The heat I guess.
 
Thanks Nelson for your answer. It makes me feel a lot better. However, what if I get a CBP officer like that guy next time I cross the border. What should I do to convince him that he is wrong? I told the officer that the instruction on the approval notice says the employer is supposed to detach the I-94 on I-797 and give it to me but he gave me a firm no, said the CBP is supposed to detach it. He said I'll have to bring evidence to prove that I'm still qualified to do my job when my wife seeks TD admission. At the end of the day, it is the CBP officer that has the authority to let me and my wife in.
 
Thanks Nelson. Another question, can a CBP officer request to re-evaluate an approved TN? I understand CBP is authorized to revoke an approved TN. Can they revoke my approved TN because I refuse them to re-evaluate my approved TN from USCIS?
 
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In my opinion, CBP would not be able to re-evaluate your TN. However, they do evaluate your admissability each entry.

Before I would allow any TN to be 're-evaluated' I would request supervisor. Your I-797 is all you need for TN. Proof of current employment would be sufficient.

You hit a bad apple on a bad day. I would be avoiding that POE if possible on my return, but would still be agressively going over his head if he could not be avoided.

Btw, You do realize, that with an approved TD I-539, your wife does not even need a new TD visa consular stamping unless and until she leaves North America. She can enter US from canada with old Visa and good i-94 thru AVR, so your worries about her or you having to go to Canada may ne pointless.
 
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nelsona said:
Btw, You do realize, that with an approved TD I-539, your wife does not even need a new TD visa consular stamping unless and until she leaves North America. She can enter US from canada with old Visa and good i-94 thru AVR, so your worries about her or you having to go to Canada may ne pointless.
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Thanks again Nelson. I understand that. However, as I previously stated in my first post, me and my wife are going to China at the end of August. She therefore needs a visa stamping from the consulate since she's a Chinese citizen. Should I spend the $300 to file I-539 and wait until she goes to the consulate for the visa interview? I-539 may not be approved before she departs for her interview which takes place on Aug 10th. She will therefore still need a new I-94 on her way back to US after she receives her TD visa stamp.
 
nelsona said:
You hit a bad apple on a bad day. I would be avoiding that POE if possible on my return, but would still be agressively going over his head if he could not be avoided.
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I was at Blaine, WA. I received two TNs from that POE in the past and my wife received her current TD from that POE too. It is a major POE that lies between Vancouver and Seattle. It seems they might have changed staff there and tightened the rule. I heard a couple of people who got their TN denied from that POE since the end of last year.

If I go to another POE which is 30 minutes drive from this one, will this raise any suspicion? The other POE is a much smaller one although it can get quite busy some time. Will there be a higher possibility that we'll get a more experienced CBP officer? Will the officers in that POE even able to process TD application?
 
nelsona said:
In my opinion, CBP would not be able to re-evaluate your TN. However, they do evaluate your admissability each entry.

Before I would allow any TN to be 're-evaluated' I would request supervisor. Your I-797 is all you need for TN. Proof of current employment would be sufficient.
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This raises another option. If I only send my wife to the border and I stay in US, the CBP officer will be unable to re-evaluate my TN. Will that give her a better chance to get her TD?
 
Yo do realize that you can edit your posts, so posting several in a row isn't of much use.

If you are going to china, then it is indeed best to get Visa in Canada now.

Forget this "re-evaluate" thing, it's a bluff. And also there is no "tightening of the rules" just petulent POE officers.
 
Thanks Nelson. Yeah, I do know that I can edit my posts. I just had different questions at different times. Anyways, I'm thinking about filing I-539 for my wife. We'll go to Vancouver for her visa interview on August 10th and hopefully, we'll make it back to US without problem.
 
Hi Nelson or anyone else with knowledge on this,

My employer's attorney said the following:

"You will be required to present both top and bottom portions of the original Approval Notice when seeking re-entry to the United States after travel abroad (including travel to Canada or Mexico), even if you detach the bottom portion per the instructions. You should therefore be certain to keep both top and bottom portions of the document with your travel documents or in your passport."

This is incorrect, right? My employer, the petitioner of I-129, should be in possession of the top portion of the approval notice at all time.

Another question is that my wife is in possession of a TD visa stamped on her passport. Her TD visa will expire on July 18th, 2009. She can apply for a new TD I-94 card based on my TN extension approval notice which extends my TN to July 18th, 2012 on or before July 18th, 2009 at any US port of entry. Am I right?
 
The petitioner is only required to give you the bottom portion of the I-797.

It is common courtesy to give you a copy of the top, although all information you need is on the bottom half, so Lawyer is pulling his instructions out of his a$$.

Your spouse will be given a TD that wil be concurrent to your new TN.
 
Thanks Nelson. I wish I could buy you a beer some time. I'm going to have my wife going to the border on July 10th to apply for a new TD status. She is going there by herself. Hopefully, she'll get it without any issue.
 
My wife went to US/Canada border earlier today to apply for a new TD based on my TN approval. Although she was admitted into US based on her existing TD which expires on July 18th, the CBP officer refused to issue a new TD for my wife. The officer told her that I, the principal TN holder, have to accompany her when she applies for her new TD. The officer also said that I need to replace the I-94 that came with the I-797 with the I-94 that CBP issues. Is what the officer said correct? Why can't my wife be considered as follow to join the principal TN holder?
 
The officer was wrong on all counts. Your wife should have insisted on speaking to his supervisor.

Your TN is valid in all respects and your spouse is entitled to TD on that basis alone.
 
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