TD Visa Applicants Aging Out? Use Multiple I-539s
Individuals already present in the U.S. under TN visa status may extend their TN visa status by mail using form I-129. A TN visa workers spouse and children under 21 accompanying the TN visa worker may also extend their TD visa status with the joint filing of an I-539 application.
One potential problem arises where a TN visa worker’s son or daughter will turn 21 at some point during the proposed extension of TD visa status. This is more likely to happen now that TN visa status, and as consequence TD status, may be extended in three year periods. If only one I-539 application was filed to extend the TN visa worker’s spouse and children’s TD visa status, USCIS will approve the extension of status only up until the day before the son or daughter’s 21st birthday. This is due to a rule found in 8 C.F.R. § 214.1 (c) (2), which discusses extensions of stay for family members and states that “[t]he shortest period granted to any member of the family shall be granted to all members of the family.” Not only does this scenario require a subsequent extension of status filing for the spouse, it also can lead to serious consequences.
As a general practice, TD dependents should have the same period of authorized stay as the TN visa worker. Anytime a disparity exists between a TN visa worker’s status and his or her family members, the potential for problems looms. For example, if the spouse neglects to file an application to extend his or her TD visa status, the spouse will be considered out of status once his or her I-94 expires. Not only will he or she be subject to removal, but the spouse will need to either go to the border (if Canadian) or to the U.S. consulate (if not Canadian) in order to obtain a new TD. Furthermore, the spouse will start to accumulate unlawful presence six months after the I-94 expires, which can lead to multiple year bars to returning to the U.S.
This problem can be avoided if two I-539 applications are filed: One for the TN visa worker’s spouse, and another for the TN visa worker’s son or daughter who will turn 21 during the proposed extension.