First Time TN VISA I-129 Filers Can Face First Time Issues
As more TN visa workers file for the extension of their TN visa status by mail due to the Covid 19 pandemic, an influx of people have been reaching out to me for assistance with Requests for Evidence (RFE). USCIS issues an RFE when it believes additional information or documentation is needed in order for the applicant to establish that he/she qualifies for TN visa status.
TN visa workers who have filed I-129 petitions for the first time to extend their TN status are often shocked when they receive an RFE. What they do not realize is that USCIS is a separate agency than the one that approved their prior TN applications (e.g. USCBP for Canadian citizen border filings, or the U.S. Embassy/Consulate for Mexican citizen filings). The result is that USCIS is usually reviewing their case for the first time. It is not uncommon in this scenario for USCIS to raise issues that USCBP or the Embassy may have overlooked, e.g. whether the applicant’s degree qualifies for the TN occupational category. Also, there are some areas that USCIS may look at more closely than these other agencies, e.g. whether a license is required for the position, or whether the employer typically employs workers in the applicable TN occupational category.
Individuals renewing their TN visa status by mail with form I-129 for the first time should also be aware of the following:
Employers may file I-129 petitions up to 6 months in advance of the proposed start date that will be listed on the I-129 form (i.e. the expiration date of the individual’s current I-94 record).
The I-129 petition must be filed before the expiration date of an individual's immigration status (as indicated on an I-94 record), or applicable grace period.
All applicants must be physically present in the U.S. on the day the petition is received at USCIS.
Individuals generally cannot travel outside of the U.S. while the I-129 petition is pending. Any departure from the U.S. while the petition is pending could result in the denial of the petition.
A TN visa worker whose I-94 expires after the I-129 petition has been filed is allowed to continue working for the same employer for 240 days past the expiration date of his/her I-94 record.
USCIS processing times currently range from 4.5 to 6.5 months. Applicants have the option to file using premium processing.
For RFEs issued between March 1, 2020, and March 31, 2021, USCIS will provide individuals with an additional 60 days from the original due date to respond to the RFE.