Update on Extension of TN Status to 3 Years.

Question: Have you heard anything about the extension of the TN period to three years that was announced in the summer?

Answer: Since this summer, the Department of Homeland Security (DHS) has not made any further formal announcements about extending the validity period of TN visa status from one to three years. Based on the published regulatory agenda for DHS, it appears that DHS may not take any action on extending TN status in 2008.

Not Likely for ‘08
According to its regulatory agenda, DHS does not plan to act in 2008 on extending TN visa status to three years.

The Unified Agenda, published every spring and fall, provides uniform reporting on the regulatory activities under development throughout the Federal Government. The law requires that U.S. government agencies publish their regulatory agendas in the Unified Agenda describing the regulatory actions under development or review. As part of the Unified Agenda fall edition, agencies must also publish a Regulatory Plan that identifies regulatory priorities and the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year.

According to the Unified Agenda for Fall 2007, DHS has not submitted any regulatory agenda or plan for fiscal year 2008 proposing to extend the validity period of TN visa status from one to three years. Apparently, DHS has not formally started the rulemaking process for potentially extending TN status to three years. Likewise, it appears that DHS does not plan to do so in 2008. However, DHS has no legal obligation to adhere to the schedules provided in its agenda and may issue or propose regulations not included in the agenda.

DHS has conducted aspects of the economic impact analysis required under the Regulatory Flexibility Act for this rule change, which is generally conducted during the initial stages of the rule making process and prior to an agency submission to the Unified Agenda. On this alone, I cannot conclusively state that DHS will issue any proposed rule next year. But as it stands now, the extension of TN visa status to three years is not on DHS’s agenda for 2008.

Misc.Brian D. Zuccaro, Esq.