GAP BETWEEN FILING TN VISA FOR CHANGE OF EMPLOYER

Question: An employment agency hired me to work for a second company. At a point the second company hired me directly. Now, how many days can the second company take to apply for a TN visa for me after the employment agency terminates?

Reply: The short answer is zero. That is, you should not have any gap between the termination of your employment with the employment agency and the new company’s filing of a TN application for you. If you do have a gap, and you are still present in the U.S., then you will be considered out of immigration status.

You must obtain a new TN in order to start working for this new company. You may file an I-129 to change employers prior to ending your work relationship with the employment agency. However, you cannot start working until the I-129 petition is approved, which may take 2 months or more. You can request expedited processing for an additional $1,000 government filing fee and receive a decision within 15 calendar days.

The ability to file an I-129 petition is generally only available if the I-129 petition is filed while you are still working for your current company. It cannot be filed after you have stopped working. Otherwise, the petition may be denied due to a failure to maintain your immigration status. Filing the I-129 petition before you stop working for the employment agency will allow you to remain in the U.S. until a decision is made on the I-129 petition. Again, you cannot start working for the new company until the petition is approved.

Alternatively, assuming you are a Canadian citizen, you may depart the U.S. when you stop working for the employment agency, and then file for a new TN at the border. You may then start working for the new company upon approval. If you are a citizen of Mexico, you would have to file for a new TN visa stamp at the U.S. consulate in this scenario.