Can I Apply for a TN from within the US after Entering as a Visitor?
Question: I am a Canadian citizen. Can I go to the US as a visitor, obtain a job, and then while remaining in the US apply for a TN visa without coming to Canada and applying at the Canada/USA border?
Reply: It is permissible to enter the U.S. as a visitor for purposes of seeking out potential employment opportunities. AILA/DOS Liaison (Oct. 30, 2000), AILA InfoNet Doc. No. 00112201 (posted Nov. 22, 2000).
However, an individual cannot begin working in the U.S. as a visitor. He/she must first obtain proper work authorization. If a Canadian citizen lawfully enters the U.S. as a visitor, and is subsequently offered employment, he/she may be able to apply for TN visa status, if eligible, by filing an I-129 petition by mail for a change of status. The individual, also, cannot begin working until the I-129 petition is approved. As such, the I-129 petition may need to be filed via premium processing.
It is, also, important to not misrepresent to U.S. immigration officers the nature of any visit to the U.S. (An individual who makes a misrepresentation at the border can be expedited removed [a 5-year bar to the U.S.] or charged with fraud [a lifetime bar]). It is also important that any subsequent activities undertaken while in the U.S. as a visitor are not inconsistent with the visitor visa classification, or with any statements previously made to U.S. immigration officers. USCIS, in its adjudication of an I-129 mail-in petition - may assess whether the applicant concealed his/her true purpose for initially entering the U.S. While this may not always lead to a charge of misrepresentation, it can lead to a denial of the petition as a matter of discretion. See USCIS, Adjudicator’s Field Manual 30.3.
A more conservative approach would be to depart the U.S. and apply from outside of the U.S. - either by applying for the TN at the border, or by filing an I-129 petition by mail with USCIS for advanced adjudication of the TN petition. (This latter process is only available to Canadian citizens.)