TN Visa & Effect of Potential Recession

Question: I'm from Canada working in the USA under TN visas. Can the recession affect my TN visa renewal? Thanks for your comments.

TN Visa & Layoffs
Best practice: wind down affairs and depart the U.S. by the employment end date. Alternative: change to another non-immigrant status to avoid maintenance of status issues.

Answer: In a recession the prospect of layoffs loom. Although devasting to any individual, the foreign citizen worker's problems are compounded.

A TN visa worker must move quickly to either wind down  his or her affairs and depart the U.S. or find another way of maintaining immigration status either through new employment or a change of status. This all must be done prior to the employment end date.

Contrary to popular belief, there is no grace period in this situation. A TN visa worker must depart the U.S. as soon as the employment relationship ceases. Alternatively, he or she may file for a change of status to another non-immigrant category or file for a TN with a new company.  Any application must be filed prior to the employment end-date.

In some situations, an argument may be made that an individual maintains his or her TN visa status during a "temporary" lay-off. The TN regulations regarding strikes and labor disputes indicate that not all periods of unemployment result in a failure to maintenance of status:

If the alien has already commenced employment in the United States [under TN status] and is participating in a strike or other labor dispute involving a work stoppage of workers…the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers…8 CFR § 214.6 (k) (3).

If a TN visa worker can maintain status by voluntarily participating in a strike, then surely an argument can be made that status is maintained during an involuntary temporary lay-off. Immigration regulations governing the I-9 employment verification requirements may support this proposition that a temporary lay off does not result in a failure to maintain TN status.

An employer does not need to redo its I-9 employment verification process “if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.” This regulation provides that an individual is continuing in his or her employment when “temporarily laid off for lack of work.” 8 C.F.R. § 274a.2 (b) (1) (viii) (A) (3).

We can also refer to U.S. immigration policy memoranda regarding the effect of a layoff on H-1B visa workers. These materials make a distinction between a layoff and termination. A laid off non-immigrant worker is one who is simply in inactive status for the employer. The term is generally associated with the practice of “benching” where an employer places an H-1B worker in inactive status due to work slowdowns, time in between contracts, and so forth. So long as the employment relationship continues the nonimmigrant worker is not considered out of status simply due to inactivity. When the employment relationship does not continue, then the non-immigrant worker is no longer in status. In this case, the non-immigrant must depart the U.S. upon the moment of termination. See E. Hernandez Letter, Director, Business and Trade Services Branch, legacy INS (March 2001).

What's the best strategy then to take if you are laid-off? I favor a conservative approach: wind down your affairs and depart the U.S. by the date your employment terminates. Alternatively, if you cannot settle your affairs by that time, request a change of status to another non-immigrant category (e.g. as a B1/B2 visitor). If filed before your employment end date, you will be authorized to remain in the U.S. until a decision is made on the application.

If you are laid-off but expect to resume employment shortly, an argument may be made that the lay off is temporary and does not invalidate your TN visa status. Nonetheless, remaining in the U.S. during this time may not be the most prudent course of action. While you may make a legal argument that you are still in TN status, U.S. immigration officials may think otherwise. To avoid complications, it may be better to depart the U.S. or change to an alternative non-immigrant status during this period. You can then apply for a new TN once your employer needs your services again. This way, immigration officials cannot question your maintenance of status. It's always better to avoid an immigration issue when possible, rather than to try and clean one up.