Avoid the Appearance of Unlawful Presence During Extension Petitions

Departing the U.S. while Extension of Status (EOS) Petition is Pending and I-94 has Expired.

When a TN worker departs the U.S., Custom and Border Protection officers will often not know whether this individual has an application for an extension of TN status (“EOS”) pending with the Vermont Service Center. This can become problematic when the TN worker’s I-94 has expired after the filing of the EOS petition.

In this situation, a TN worker is authorized to continue to work for 240 days beyond the expiration of the I-94 and does not accrue any unlawful presence. See 8 C.F.R. § 274a.12(b)(20). When an individual in this situation leaves the United States while the extension is pending, the TN worker must surrender his or her expired I-94. To a CBP officer, it appears that this TN worker has overstayed his or her original period of authorized TN status.

When CBP processes an individual, officers cannot access the USCIS databases that indicate that an EOS petition is pending unless they proactively perform a search in these specific databases. CBP has provided guidance to ensure that TN workers in this situation will not be deemed to have overstayed.

CBP has stated that when an individual has timely filed a petition for EOS and leaves the United States while the extension petition is pending, the person should take copies of the following to show that no unlawful presence has accrued:

  • Prior I-797 Approval Notice;
  • Prior I-94;
  • Current I-797 Receipt Notice; and
  • Letter from Employer verifying current employment.

From AILA / CBP Liaison Committee, Questions/Issues for Discussion (March 22, 2006), AILA InfoNet Doc. No. 06100666 (posted Oct. 5, 2006).

Revised July 8, 2008.