TN Visa Layoff Questions

S

sagarv

New Member
I was wondering if I could seek some advice regarding my immigration situation;

- I have been working under valid TN status (Sci-Tech) for the past 6 years.
- My current employer informed me on Oct 30, 2016 that my last day of employment would be November 1st due to layoff. My I-94 is valid until March 6, 2017.
- On Oct 31, 2016, I filed a form I-539 requesting change to B-2 status until Jan 31, 2017 so I can close my affairs. I believe I am now B-2 pending. I have not yet received a receipt of this filing from UCSIS.
- Today I received a new job offer, performing similar duties as my past jobs. The new employer requests that I start no later than December 5.

My questions are as follows.

1) I plan to fly to Toronto around Nov 30 and apply for new TN at Peace Bridge, as I have done in the past, and then return immediately (pending approval). Is there anything I might be missing with this schedule? Will the immigration officer ask why I am returning so soon, or ask for a receipt of my B2 filing (which I don't have)?

2) How should I explain to the immigration officer my gap in employment? My understanding is that seeking employment is not a valid reason to be on B2. Is it likely the officer will ask how/when I attained this employment offer after filing a B2 when I should have been "closing my affairs" ?

3) Is it likely I will be scrutinized for spending the past 6 years in the US and looking to return there for work again? I own a property in Toronto and can produce utility bills, but I'm not sure if this is sufficient evidence to show my residential status in Canada.

Thanks for your help.
 
First, everything in your preamble is correct. You are in B2-pending.
1. Not sure what you mean by "returning". Do you mean return to Toronto after getting the TN? Or do you mean returning to US. This is done all the time. You were legally in US the whole time and are returning there to work legally. You must carry some documentation that you submitted an I-539 -- even just copies. That should be enough (hopefully you will get a receipt notice before you go back, or lat least the case number online)

2. Your finding a job is completely legitimate. You did not ENTER US on B status. And even if you had, and found a job as a side note to your stated purpose for visiting, you would still be fine. This is not a concern. They don't care about gap in employment, they care about gap in legal status, which you never had, by filing I-539 timely.

3. You were on TN and are continuing on TN. Your situation is no different than if you had changed jobs this month. You don't need to prove any foreign residence at all. Besides owning foreign property would prove anything anyways. You don't live there.

The only caveat I would point out is that your pending B2 only covers you until you leave US. Once outside, your only way to enter at this point is by getting TN approval. You won't be admitted as a tourist because you have no basis for making such an entry. So, with that in mind, remember that you can still file an I-129 using premium process to get your new TN (only because you filed I-539 and are in status) by December. Otherwise make absolutely certain that your border TN petition is bullet-proof, as you won't be entering US until it is approved.
 
Thanks for your response, Nelsona. Luckily, I checked my mail today and received a receipt from USCIS.

Filing an I-129 from within the US seems like the least risky option, but I am doubtful that my employer's immigration firm will be able to send me the application until at least the week after next, especially with Thanksgiving coming up. My TN case is also not the most straight forward, as it is for a Sci-Tech software engineering position, and I do not possess a degree. I have successfully submitted all my 6 previous TN applications at Peace Bridge, thus why I thought it would be best to return there, even though I am located in San Francisco and it is far from the most convenient location for me.

With regards to your last point, I understand I am inadmissible as a tourist after having worked under a TN and having no ties to Canada. When I was previously laid off in 2012, I left the country immediately and was able to successfully return approximately 1 month after departing the US for job interviews, which I was able to setup from Canada. In a worst case scenario (denied TN application), is this strategy likely to work again, or was I perhaps just lucky that one time?

Thanks again for your help.
 
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In my opinion, you were lucky. And, yes, Sci tech is a difficult category, since, as you know, you are essentially applying for a TN for you and a "TN" for your supervisor, and unless your firm has dealt with Sci Tech TN before, plan for an initial denial (ie. make sure you are able to quickly send/receive info/docs while in Toronto, and don't go to border on weekend, especially next long weekend). Your Nov 30 mid-week date sounds good, letting know you new employeer to be available for phone, etc at the time you plan to cross.
 
Hi Nelsona,
My new employer's firm ended up filing premium processing under the Computer Systems Analyst category, which was approved. I departed the US and re-entered under valid TN status with an I-797. I have never received an I-797 before as I usually apply at the border so my question is: When traveling abroad going forward, do I need to now carry the I-797 every time I re-enter the country? If so, is it acceptable to only bring the "tear-off" portion? To be honest, I much preferred having an I-94 card stapled in my passport than having to look after this paper every time I travel.
 
I always put the tear-off portion of the I-797 approval notice (the information stub), so that border could easily trace my TN by petition number
But anyone in TN (or any other work authorization) is ALWAYS supposed to print out their latest I-94 available online if they were not issued a paper one, and have it available (your employer MUST be given one by you for the I-9 documentation)
I do question -- if they filed premium processing while you were in US -- why you felt the need to go to the border? It should have been filed as a change of status from B2 to TN, with I-94 issued with the approval notice.

And, did you officially cancel your B2 petition, or verify that it has been cancelled by USCIS? Very important, otherwise you could see yourself inadvertently in b2 status if the I-539 is approved.
 
Hi Nelsona,
Thanks for your response. I am not entirely sure why the company's firm instructed me to leave the country and re-enter. They indicated it was necessary in order to abandon the B2-pending status and "activate" the new TN status, so perhaps they filed it as a new petition instead of an AOS? I was already planning to to travel for the holidays, so it didn't end up being much of an inconvenience.

As a final question, what is the process for updating my Nexus card to have the latest I-94/TN information? I could not locate any place on the GOES website do to this, does it have to be done manually at a port of entry?
 
Yes, departure *should* take care of the B2, but it might not, thus the need to check. The TN was active however.
No idea on nexus
 
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