TN and B-2 applications crossing

N

nyccanadian

Registered Users (C)
Hi,

I'm a Canadian living and working in the US on the TN status for the past 8 years. I was laid off in September 2009, and as suggested by folks in the forum, I sent in an application for the B2 to remain in status. But before I heard back, I had found a new job and obtained a new TN status.

So when I got a letter asking for supporting documents for my B2 application, I (stupidly) ignored it - I figured that since my current TN application came after my B2 application, it would not matter.

Now I just got a letter from USCIS saying that because I failed to send them those documents, my B2 application "is considered abandoned and denied per 8 CFR 103.2 (b) (13)", and that i'm required to leave the country.

It also says that the denial cannot be appealed but I could file a motion to reopen the application. But my situation does not meet any of the reasons it stated as acceptable (wrong address etc) for a motion.

What should I do at this point? Could I just write them to clear things up?

Any advice would be greatly appreciated!
 
The USCIS has acted exactly correctly and you are now required to leave US and re-enter on your TN. That is why you MUST -- as has been repeated here countless times -- formally cancel any outstanding petitions when you get another one.

So, stop work today, go to border and enter on TN.
 
Thank you so much for your quick reply.

Just to be sure I understand correctly, i would just need to enter the country again with my current TN status and not apply for the status again correct?

Would i need to mention this to the officer at the border?

Your advice is much appreciated. Thanks again.
 
I would mention it, and even ask for a new I-94. You see, the one that was issued to you is superceded by the denial. I would do this real quick so there is no suspicion that you continued to work after being declared out-of-status.
 
nelsona said:
The USCIS has acted exactly correctly and you are now required to leave US and re-enter on your TN. That is why you MUST -- as has been repeated here countless times -- formally cancel any outstanding petitions when you get another one. So, stop work today, go to border and enter on TN.
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If he left the US prior to the COS being adjudicated, it was automatically canceled.
 
TheRealCanadian said:
If he left the US prior to the COS being adjudicated, it was automatically canceled.
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I did leave - when I found my current job, went back to Canada and reentered for my current TN status. Does it mean I should be fine? I think I'll go back and reenter again like nelsona said just to be safe - my only worry is having to explain this to the officer at the border. I'm also talking to a lawyer tomorrow. Just to get different opinions. I really appreciate you guys for taking the time to respond, it's been really helpful. Thanks again.
 
nyccanadian said:
I did leave - when I found my current job, went back to Canada and reentered for my current TN status. Does it mean I should be fine?
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Yes, especially if your TN I-94 is dated after the COS was filed, but before it was denied. There's no better proof that you left the US.

I think I'll go back and reenter again like nelsona said just to be safe - my only worry is having to explain this to the officer at the border. I'm also talking to a lawyer tomorrow. Just to get different opinions. I really appreciate you guys for taking the time to respond, it's been really helpful. Thanks again.
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Unless you get a new I-94, I'm not sure what additional benefit you are getting.
 
TRC, while indeed the B2 I-539 should have been considered abandonned when our poster left US, clearly it was not, and as such, the "last action" of CIS is to declare them "out-of-status". This is further complicated by the fact that even after it was abandonned, an RFE was sent -- and should have been responded to -- which would have got the matter cleared up.

Now, they could (maybe) take their case to a local office, appeal the decison based on the fact that the I-539 should not have been adjudicated. But this is time consuming and will not allow the person to work in the meantime in my opinion.

The last action of the CIS is "no status". This needs to be overcome by a newer action. Simple entry in TN would satisfy this. But given that CBP did not record their last departure properly, I would be insisting an a new I-94, to put this to bed.

Cases like this is why it is ALWAYS adviced to cancel any pending petition that one no longer neeeds.
 
Just to explore another line of reasoning:

Can it be concluded that a denied petition is a "non-event" in the eyes of DHS?

Consider a person in TN status, wishing to change to H1 by I-129. The H1 is denied for whatever reason. The TN is not cancelled and one continues in TN status.
However in this case, the I-539 was not truly a request to change status, it was a request to get into some status. Otherwise, as the CIS concluded in the denial notice, the petitioner had no other legal status to be in US and should have left.

So, I do think that the B2 denial is more than just a failed petition, especially sicne it came with clear instructions to leave US.
 
nelsona said:
TRC, while indeed the B2 I-539 should have been considered abandonned when our poster left US, clearly it was not, and as such, the "last action" of CIS is to declare them "out-of-status".
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It doesn't matter whether USCIS considered it abandoned or not, it was abandoned. It's no different than the B-2 COS I filed in 2001, it was approved after I had left the US and re-entered with new I-94s. It didn't cancel my H status (or my I-485), the COS was invalidated automatically.

The last action of the CIS is "no status". This needs to be overcome by a newer action.
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No. A COS is always abandoned the instant the alien leaves the US.
 
nelsona said:
However in this case, the I-539 was not truly a request to change status, it was a request to get into some status. Otherwise, as the CIS concluded in the denial notice, the petitioner had no other legal status to be in US and should have left.
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It was a request to change from TN to B-2 status.

So, I do think that the B2 denial is more than just a failed petition, especially sicne it came with clear instructions to leave US.
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That's boiler plate. USCIS isn't aware that he had left the US and re-entered.
 
The last action doctrine would disagree with your experience. In my opinion, your status did indeed revert to B2 when the I-94 was approved. You simply chose to ignore it. I would have chosen to normalized my status at that point to the one I wished to be in.

Remember that the B2 approval would not impact the H1 approval (the non-COS part), nor an I-485 petition, as neither of these is a status.
You just didn't realize that you were in B2.

We have threads here all the time of what CBP or CIS should have done (wrong I-94 duration, wrong status, etc). We can't rely on what should have been done to maintain status. In the end it is what they do that counts, and especially what they do last.

In any event, he has both our opinions, he will have to choose.
 
nelsona said:
The last action doctrine would disagree with your experience. In my opinion, your status did indeed revert to B2 when the I-94 was approved. You simply chose to ignore it. I would have chosen to normalized my status at that point to the one I wished to be in.
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Last action only applies when leaving the country does not constitute abandonment of the application, like an employer filed I-129. Google COS abandonment.

You just didn't realize that you were in B2.
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Apparently, neither did USCIS when they reviewed my entire status history at my I-485 interview.
 
Google COS abandonment.
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No need to insult me. I already said leaving country had no impact on H1 and I-485.

Regardless of what CBP/CIS should have done COS abandonment is in the eye of the beholder. CIS dis not consider it abandonned, and certainly does not in the current case.

Last action applies in all cases.
 
On the subject Zhang has an interesting article about last action, applied to petitions for H1 and H4. If one submits an H4 and an H1, and the H4 is approved after H1, the person, unless they take further action, is in H4 and working illegally.
http://www.hooyou.com/news/news051207lastactionrule.html
Forom what I read, this is so even if CIS should have, by virtue of writen notice or by abandonment, cancelled the petition.

So, had the B2 been approved, notwithstanding the presumed abandonment by leaving US, our poster would definitely be in B2 today, just as I beleive TRC was when his COS came thru.

The question then becomes is a failed petition a last action. On this point I'm a little less confident, as TRC says, the wording for leaving US is likely boiler-plate and may have done nothing to his TN status.
 
nelsona said:
On the subject Zhang has an interesting article about last action, applied to petitions for H1 and H4. If one submits an H4 and an H1, and the H4 is approved after H1, the person, unless they take further action, is in H4 and working illegally. http://www.hooyou.com/news/news051207lastactionrule.html Forom what I read, this is so even if CIS should have, by virtue of writen notice or by abandonment, cancelled the petition.
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Perhaps I missed it, but when I read the linked article I didn't see any that dealt with leaving the US except the last one, which is different in the case that it's a future-dated COS and the applicant never left the US between filing and adjudication. That's the core question here - is a COS automatically abandoned if the alien beneficiary departs the US after filing but prior to adjudication? I believe yes:

http://www.google.com/search?hl=en&...nment+immigration&aq=f&aqi=&aql=&oq=&gs_rfai=
 
So I asked 3 lawyers today. Lawyer 1 thinks he could write them a letter for me to clear things up, and I can have a copy of the letter with me whenever I cross the border in case something comes up. Lawyer 2: "It appears to us that there's no unlawful presence issue since you left the U.S. while the I-539 was still pending." Lawyer 3 thinks I could just leave and re-enter.

Might be talking to 2 more tomorrow.
 
The first lawyer is being more lawyer-like than legal (ie. he wants to get paid). The letter would be of no good once you are outside US. The letter would only be good if you decide to stay in US and fight the denial (which when you think of it would be silly -- you don't want the B2 approved).

I think the trip to the border will be cheaper than the letter.
 
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nelsona said:
I think the trip to the border will be cheaper than the letter.
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The border trip is probably the safest course, but you ABSOLUTELY want a new I-94 if you do so; it can have the same expiration date, but the I-94 itself needs to be dated after the B-2 denial. Otherwise you have no practical proof you left the US and re-entered.
 
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