TD out of status

[kimberlily]

I think I may have a problem. My husband was offered a second job, which he accepted. His first employer had already filed extensions for his TN and TD for myself and our daughter. He was going to continue consulting for them on a part time basis.

He hasn't had any work from them since starting with the new employer, and he heard through the grapevine that the first company may have cancelled the renewal application. He has a valid TN with the new employer, but the TD for myself and our daughter have expired, meaning we're out of status. We were just going to keep the TD with the first company, so we didn't go with him to the border when he applied for the new TN.

To complicate things further, our daughter's passport has expired and we haven't received her new one yet. My understanding is that you don't need a passport to get a TD, but I don't trust the officers to have the facts straight since we've had problems in the past.

I'm guessing this is a big problem, especially if his original employer has, in fact, cancelled the renewal. That would mean that we don't get the grace period while the renewal is processed, so we should go to the border and get our new TD immediately. But will this be a problem at the border? I'm really worried that they will deny my daughter and I since we're now out of status for a month.

If anyone has any experience with out of status TD, I'd really appreciate some feedback.

Edited to add: I was reading this thread about getting a new TN for a new employer by e-filing. I thought you had to physically go to the border for a brand new TN? If not, would we be able to e-file to get new TD for myself and our daughter?

 

[kimberlily]

I just found this: http://www.americanlaw.com/q&a120.html

The answer to the 3rd question says “Technically, a dependent's TD status is not specific to an employer; rather, it is tied to your status. As long as you hold TN status, your dependents are entitled to TD status. Even if you change from one TN employer to another, you will continue to hold TN status so their eligibility should not change.”

Is this correct? If so, we should be okay after all, correct?

 

[nelsona]

Well, no.

Your TD is indeed tied to your spouse's TN -- and it does not matter which TN. However, you must still keep the TD active. Your I-94 has expired. There may have been some grace period attached to the TN/TD renewal, but if (a) your husband is not working for that sponsor anymore, or worse,(b) if that sponsor has cancelled the petitions, you have no grace period.

So, you do need to get to the border and get new TDs. You need to do this before 180 days have elapsed since I-94 was expired. This will be sufficient to avoid any future problems. The reason you can't do this by mail or e-file (I-539) is that you are out of status. I-539 requires you to be in a valid status when you file.

And while your *might* be able to go to the border without passport, it is unlikley since ruels have been tightend Jan 31, 2008.

 

[TheRealCanadian]

if that sponsor has cancelled the petitions, you have no grace period.

While it's a bit of an academic point, I don't see what basis the employer has to withdraw the TD extension - and if the employer's attorney did so, they should be afraid for their license.

 

[nelsona]

While it's a bit of an academic point, I don't see what basis the employer has to withdraw the TD extension - and if the employer's attorney did so, they should be afraid for their license.

Withdrawing the TN would have been sufficinet to kill the TDs in any event.

I would think, though, since they file the petition, that they would have an underlying responsibility to cancel it, when it bacame clear that it was no longer viable.