TN almost expired - new TN denied at border

E

eukray0te

New Member
Hi there,

My girlfriend has worked as a graphic designer at an agency for the last 3 years. Last weekend she went to the Peace Arch border crossing to get another 3 year TN. They would not issue a new one because her letter was missing an end date. She revised the letter and we went back to the border last night. There, the CBP agent denied the application because he felt her job description does not match the graphic designer category. She has held two TN statuses previously as a graphic designer, one, as I mentioned with this same company in the same position. This was a "hard" denial and they escorted us back to the Canadian border. We went back around to the US side to try to enter her for her remaining few days on her TN (plus the 10 day grace period) so she can clean up loose ends before leaving.

Do we have any options here? I have never heard about the I-129 before (and she unfortunately didn't read up on it), but it sounds like her employer could petition for an extension. The problem is her TN expires in 4 days. She has also been denied a new TN, so that could complicate the I-129 extension process, I'm not sure.

The border guard, when allowing her in on the remaining 4 days of her status said she better be out by the 14 days and return the I-94 to the same border crossing so they know she left.

Ok, so that's our situation. What I'm wondering is is it too late to apply for the I-129? I read that you need to file before your I-94 expires. We could probably get a lawyer and her boss to turn that around quickly. The application will obviously take longer than her remaining time in the US (she now has 13 days to leave, and premium processing takes 15 days). Can she leave the US while the I-129 is in flight and re-enter if it is extended? In that case, how does the new I-94 get issued? Is a letter sent with the I-129 approval informing the CBP agent to please re-issue a new I-94? Or in the process of applying for an I-129, is she allowed to overstay her current I-94?

We were tired, it was late, and I feel that we made a mess of things at the border and goodness knows what notes are in her file now. Is this situation beyond repair?

I plan to seek an immigration attorney Monday morning, but thoughts either way on this forum would be appreciated as we plan our next moves.

Thanks.
 
As long as the I-129 is submitted before the current TN expires (and she remains in the US), she gets an automatic 240-day grace period, at which point she is in TN-pension status, allowing her to keep working. Her recent TN denial would not have any bearing on this. I-129s can be premium processed in about 2 weeks, but would not really be required in this case, unless she wants to travel.

There is no grace period if she wants to continue working without a break. Her legal status expires on the day her I-94 expires. What she must do, if she does not have time to apply for I-129 (although she could have this done in a day or 2), is apply for a change of status (again, before her TN expires) to B2 status. This would put her in "B2-pending" status. She would stop work and then She could then file an I-129 in due course.

Either of these pending statuses keeps her legal, but she would need to stay in US until approved or she would need to go to the border with an iron-clad TN petition.

Unless and until an I-129 is approved, any future entry into US on TN would have to be applied for at the border, with obvious risk.

So, the decisions:
1. Does she file an I-129 with next 2 days? She would have a week or so to submit the follow-up paperwork, copies of degree, TN letter, ect, after a consult with a lawyer.
2. Does she instead file an I-539 for B2 (called a wrap-up B2), and then file an I-129 (or go to the border with a better petition).
In either 1 or 2, does she choose premium processing.
3. Try to get all her papers in order, with lawyer, and head back to the border next week and try again.

I would be doing #1, probably with premium processing

I would NOT be leaving US until I get a new TN thru I-129

Just out of curiousity, did her original letter not have and end date NOR the 3-year maximum? Or was it simply missing an enddate.
Technically, the letter should not need a firm end date, but rather the 3-year limit should be mentionned. If it was missing both, then that was definite grounds for denial.

Also, what is your US status? A TNer going to the border with a US citizen boyfriend can sometimes be problematic.
 
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Thanks for the detailed response. We found an immigration attorney and she got us sorted out getting an I-129 application fixed up. She also had her paralegal scrutinize my girlfriend's TN letter and suggested changes to really hammer home the point that she legitimately fits in the graphic design category. We elected not to do the premium processing. We don't need to travel for a couple months at least, so it didn't seem worth the expense. The shock of the denial is over now, so we'll be prepared for the worst and be ready to sell up and move back up to Canada if they deny us. The lawyer said she's pretty confident in them approving it, so that's comforting.

Similarly, the attorney said she's fine to stay in the country, and as you said we will not be leaving until we hear a firm approval or denial of the extension.

My US status is under an L1B visa, so I'm wary of being at the border with her since my company is in the process of getting me a green card. Who knows what the future holds for us; if we get engaged and married before my priority date then that would fix this mess for her.

The original letter definitely was missing the end date, and I'm pretty sure it didn't mention the 3 year maximum. The TN visa is a 3 year visa, so we sort of thought it was taken as read that the end date is 3 years after we enter the US. The TN status is portrayed as this easy way for Canadians to come work in the US, and it sort of lulled us into not treating it as seriously as we should. I will definitely be making sure we have a lawyer look over any further extensions / applications she makes if she switches jobs. Not worth the border hassle when we laypeople don't dot the i's and cross the t's.

For future people reading this thread, a couple things to bear in mind:

- If your TN is expiring, just spend the $300 and renew it with the I-129 instead of chancing it with the CBP agents.
- If you do go through the border
- Pay a lawyer to review your documentation. See if the company will split the cost with you (they did in our case). Paralegals have laser vision and will catch the mistakes you make.
- Don't drive through the border at midnight to apply for the TN like we did. The CBP had advised us to do this at the Peace Arch in WA because there would be no line. When we actually did it, the agents on duty thought we were suspicious for doing it at night. It seems they prefer business hours incase they want to call your employer to verify your case.
 
The only problem with I-129 is that unless you premium, you are either stuck in US, or will eventually need a border TN, so ita either $300 wasted or $1500 for premium.

Eveything else you say is correct. TN is a business status, act business-like.
 
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