TN ending: should I change-status>B2 or just leave/re-enter

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domino66

Registered Users (C)
TIME SENSITIVE Q, for whatever that's worth

I'm Canadian and my employment at my TN sponsor employer is ending in 2 weeks. I would ideally like to stay here for at least a few more months (my lease, for instance, doesn't expire for 8 months, and I need at least a few months to tie up loose ends / sublet my apt, etc).

Please correct me if my info is not accurate, but I am under the impression that I can do 1 of 2 things, and I am posting to ask about the merits / pros-cons of each:

1) My employer says that they will help me file a change-of-status form to B-2...they tell me that it's pretty straight-forward (although I have read on this board some horror stories about such requests being denied.)

2) Alternatively, can't I just leave / re-enter WITHOUT a B2 (or any type of visa for that matter)? i.e. In the days after my last day of work, go home to Canada and then re-enter, I suppose as a "tourist"? I'm sure the CBP officer would ask about my status, to which I'd responde truthfully: my TN employment ended abruptly, and I am coming back in to tie up loose ends / sublet my apartment, etc.

So my first Q: do I understand my 2 options correctly?

Second Q: is one more advisable than the other?

It seems to me that the biggest drawback to the B-2 is that it could be denied, which would obviously be a worst-case-scenario, since I'm told that the denial is "retroactively" effective from the day your TN ended, meaning that you'd technically have been out of status for the period of time in between. I am leaning toward the leave/re-enter option (unless I'm convinced otherwise), because to me it seems preferable to not be "in the system"...I stress that I am NOT planning on doing anything improper, but I've had my share of dealings with CBP / USCIS before, and as most of you know: they are often stubborn idiots. If I were on a B-2, I figure that it puts me in the system / on their radar screen...whereas if I just leave and then the re-admit me as a tourist(?), I'm not on any type of official visa status, which seems like a preferable option to me.

Anyone been in my shoes, or tried one of the above 2 options and have anything to share?
 
File the change of status request. Whatever horror stories you have heard pale to not being let back in at the border, which assuredly will happen unless you have re-established a Canadian residence and can prove it.
 
As I posted in the other board (this is a better TN board by the way, forget the other one), I-539 is the only logical way to go.

One thing: rememaber that once you file I-539, you needto stay in US for that filing to remain valid. Once you leave, you are subkect to normal entry requirements -- which include foreign residence as i explained.
 
Thanks for the replies.

The only "horror story" I was referring to was this particular thread where a TN > B-2 AOS was denied:

**this forum isn't letting me post a URL*** stick the standard domain prefix for these forums in front of the following to see the thread I'm referring to:
/showthread.php?293400-Status-change-application-to-B2-got-denied...

But it's heartening to hear you say, nelsona, that it is almost unheard of (and I see you posted in the thread that it's only the 2nd case you'd ever seen.)
I reviewed that thread in detail, so will try not to repeat any of the Q's that were asked there, but there appear to be a few open issues:

1) Nelsona, you wrote that "the proper way is to file I-539 on last day of work", but the author of the 'horror' thread above claims that his was denied because it hadn't arrived AT USCIS by the final day of his employment...any clarity on this apparent discrepancy?

2) What are your thoughts on how long I can ask for in my B2 AOS? I see "6 months" cited most frequently, but my employer's (a law firm) immigration dept seems to think that the higher the request, the more likely it is to be seen as unreasonable and rejected. In your experience, is it safe to ask for 6 months or will USCIS try to essentially "match" up the length of time you request and the reason you claim to be asking for the AOS and reject you if they feel it's unreasonable? (e.g. I assume my petition will give reasons like "well, I need to wrap up my US affairs, sublet my apartment for which my lease runs through May 2011, and stuff like that >> is there a risk that if I ask for 6 months, USCIS will say "heck, what you described doesn't take 6 months, DENIED!" ?)

3) My understanding is that B-2 status individuals are NOT allowed to be job-hunting. I didn't see you mention this in any of your replies in that thread, but several times you write that people in my situation should start looking for new TN work immediately after filing the AOS for a B-2...is there not a risk, then, that you could find a new TN position, go back to a POE to enter with all your TN papers in order and have a CBP officer say "Hold on, your previous TN ended, you filed an AOS to a B-2, and now you're here at the border trying to come back in on a new TN, clearly you must have been illegally job-hunting on the B-2!"??

4) Let's say I file the AOS as you suggest...I believe you wrote that I can NOT leave the country while my AOS is being processed, or else it will be rendered invalid, and I will then be subject to normal entry requirements (which include establishing a foreign residence.) Are there exceptions to this in case of emergency? e.g. I have 2 very sick grandparents right now, and although I will likely file the AOS, I hate to think that I could be faced with a decision between going home to see my grandparents at the cost of invalidating my B-2 AOS.

5) Once my B-2 is approved, assuming it is (let's say for 6 months), can I then leave and re-enter the US at will without worrying about any foreign residence req? e.g. Let's say I go to Europe, and fly back into the US...when they ask me at the border what I'm doing, can I just point to my B-2 visa and say "I'm good...I have this B-2 that's valid for another few months for me to wrap up my affairs from my previous TN employment", or will they want to see proof of foreign residence? (What I'm getting at, is whether that's only a requirement for a POE B-2 to be approved, or whether it's ALWAYS a standing requirement even when you want to enter with an existing B-2)? (Or does a B-2 essentially expire the moment you leave the US?)

6) You wrote something interesting, which was news to me:
"Anytime a Cdn enters US as a tourist, they are entering on b-2, which pre-supposes they have a home in canada."
Click to expand...

I was unaware of this >> I thought that, for example, when I lived in Canada, and came into the US for a wedding and I just told the officer that I'd be in the US for 2 days and he let me through right away, that I was NOT on any sort of official status (like a B-2), but rather that I was just, well, in an undocumented tourist status.
 
Look. You will be out of US by the time you application is denied or not. You are allowed to find a job while in US.

I'm not reading all your questions, since this is basically cut-and-dried. As I said, your mail-in only covers you while remaining in US. You step outside, it's finished, before or after approval or denial.

By the way, you need to move to canad to get UI, so staying 6 months asa tourist will cost you.

Lose job, file I-539, assess job market while packing. Move. Collect UI.
OR
Lose job, file I-539, asses job market while packing, find job, go to border and get new TN, unpack. cancel pending B-2 application if still pending, to be safe

B-2 is tourist status.

And it's COS, not AOS.
 
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Thanks for your reply, nelsona - your tone sounds frustrated, and I'm sure that you answer the same question(s) repeatedly, but trust that your effort really is appreciated, since every question-poser (like me) is usually a nervous wreck to whom you give some peace of mind (and I really did scour the board to find the answers to as many Q's as I could before starting a new thread.)

You answered most of my Q's. The first one, though, still concerns me: You wrote that "the proper way is to file I-539 on last day of work", but the author of the 'horror' thread above claims that his was denied because it hadn't arrived AT USCIS by the final day of his employment. Do you think that was just an aberration? (i.e. an ill-informed USCIS offices who made the wrong decision?)
 
Again, you are not interested in an approval or denial, you are merely concerened with filing, packing and leaving. the only people who worry about approval are those that want to stretch their "vactaion" for the full six months.

Technically, the moment you submit I-539 you are in XX-pending status, so filing before last day means you should be quitting the day you send it.

Are you going to dwell on one poorly presented petition ( and I never said I had heard of a specific number of I-539 denials) as the basis for all this hand-wringing?
 
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