Individuals currently present in the U.S. under a non-immigrant visa status have two options to obtain TN visa status. They can file an I-129 petition by mail, or depart the U.S. and request a TN in the same manner as those seeking an initial TN visa status.
I-129 Petition Mail-in Option
An individual lawfully admitted to the U.S. under a non-immigrant visa classification, who is continuing to maintain his/her non-immigrant visa status, may file by mail to change his/her status to another visa classification. This process is known as a “change of status” (COS). 8 CFR 248.1.
A citizen of Mexico or Canada may change his/her non-immigrant visa status to TN visa status by filing an I-129 petition by mail to the U.S. Citizenship and Immigration Services.
The COS process eliminates the need for an individual to depart the U.S. and apply for a new TN at the border (Canadian citizens) or at the U.S. Embassy (Mexican citizens) in order to obtain employment authorization under TN visa status.
An individual may not take advantage of the I-129 petition COS process if he/she has failed to maintain his/her non-immigrant visa status, or if his/her I-94 has expired before the I-129 petition was filed. 8 CFR 248.1.
Petitions may be filed up to six months in advance of the proposed start date on the I-129.
In addition to the main components of a TN application, when filing an I-129 COS petition individuals must file Form I-129 along with the I-129 Free Trade Supplement.
Individuals must also submit proof of their current, valid non-immigrant visa status, e.g. I-94 records, visa stamps, and copies of recent pay stubs (if applicable).
Timely Filing Requirement
If the I-129 petition is filed after an individual's I-94 record has expired, USCIS will normally deny the petition.
However, in some situations the government may excuse a late filing if:
The delay was due to extraordinary circumstances beyond the control of the individual or his/her employer, and USCIS finds the delay commensurate with the circumstances;
the individual has not otherwise violated his/her nonimmigrant status;
the individual remains a bona fide nonimmigrant; and
the individual is not the subject of removal (deportation) proceedings. 8 CFR 248.1.
Individuals Ineligible for a Change of Status
The law restricts several groups of individuals from taking advantage of the COS procedure (see, e.g. 8 CFR 248.1).
Three groups of people who may have an interest in seeking TN visa status, but who are prohibited from filing for a COS are:
Individuals who received graduate medical education or training in the U.S. 8 CFR 248.2 (a) (3).
Individuals who are subject to the J-1 visa 2-year home residence requirement. 8 CFR 248.2 (a) (4).
An individual subject to the J-1 home residence requirement may depart the U.S. and seek his/her TN visa status from outside the U.S. (e.g. Canadians at the the port-of-entry, and Mexicans at the U.S. Embassy). NAFTA Handbook, pg. 138.
The I-129 form with supporting documents is then filed with USCIS' Vermont Service Center (as of Oct. 3, 2014).
Individuals cannot work under TN status until the I-129 petition is approved by the Service Center.
Currently, there is an average processing time of 2 months for this type of I-129 petition.
If the employment opportunity requires that work start immediately, it may be more prudent to apply for TN status from outside the U.S. (see below). Alternatively, premium processing may be requested.
For an additional filing fee, an individual can apply for premium processing of his/her I-129 petition, and receive a decision on the petition within 15 calendar days.
Individuals can check the status of their petition at any time at USCIS' website by entering their receipt number where indicated. Applicants can also sign up through USCIS' website to receive email updates on their petition’s status.
Travel Restriction While COS Pending
U.S. immigration will consider an I-129 petition requesting a change status as abandoned if the individual departs the U.S. before USCIS adjudicates the petition.
If USCIS discovers that an individual has traveled outside the U.S. while the change of status petition was pending, USCIS will deny the change of status petition. Legacy INS, Cook Memo (06-18-01).
Family members of the prospective TN visa worker may also file a request to change to TD visa status by mail, but must use Form I-539.
Family members would need to submit copies of the documentation utilized to establish initial eligibility for TD visa status, as well as proof of their current non-immigrant status.
I-129 petitions: $460 (as of Aug. 2018).
I-129 petition premium processing (if needed): $1,225 (as of Aug. 2018).
I-539 application: $370 (as of Aug. 2018).
Approval of I-129 COS Petition
An approval for a change to TN visa status requested through the USCIS Service Center is issued on Form I-797, which will include an I-94 tear-off form indicating the new validity period of TN status.
The change to TN visa status will take effect automatically on the effective date noted on the I-797 Approval Notice. USCIS, Hernandez Letter (08-14-04).
There is no specific limit on the period of time an individual may remain in TN visa status as long as he/she continues to work in a TN occupational category, and meet the temporary entry requirements. 8 C.F.R. § 214.6 (h) (1).
Mexican citizens: the approval of an I-129 petition does not result in a extension of travel authorization. Travel authorization for Mexican citizens can only be obtained by applying for a TN visa stamp at the U.S. Embassy/Consulate. (An I-129 approval may provide limited travel authorization through the visa re-validation process.)
"Changing" to TN Status at the Border/U.S. Embassy
As an alternative to using Form I-129, individuals may also "change" their immigration status to TN visa status by filing an application at the U.S. port-of-entry (Canadians) or at the U.S. Embassy/Consulate. This process will generally involve the same steps and documentation as required for an initial TN visa application.