CHANGE TO TD VISA BY THIRD-COUNTRY NATIONALS

Question: I'm a Canadian citizen and just obtain a 3 year TN. My wife is a citizen of Korea currently with me in the U.S. under a visitor visa. We'd like for her to obtain a TD visa. Can she apply at the U.S. consulate in Mexico, or can she file by mail from within the U.S.? What would be the pros and cons of these two options?

Reply: Most U.S. consulates restrict or disfavor the filing of non-immigrant visa applications by “third country nationals” (i.e. individuals who are not citizens/residents of the country where the consulate is located).

U.S. consulates in Mexico may allow a third country national to renew his/her non-immigrant visa in Mexico (e.g. a current TD visa holder seeking a second TD visa stamp). However, U.S. consulates in Mexico may not accept a third country national’s application seeking a visa in a different classification (e.g. a B1/B2 visa holder seeking a TD visa). See, e.g. information from U.S. consulates in Tiajuana or Merida.

Third country nationals seeking a visa in a different classification may only be able to obtain that visa stamp at a U.S. consulate in their home country. Besides the travel requirement, the other disadvantage for TD visa seekers is that the denial of the visa application may lead them outside the U.S. without the ability to readily return. However, once an individual obtains the TD visa stamp, he/she can use that to travel in/out of the U.S. This is an advantage not available through the mail-in process.

Alternatively, spouses of TN visa workers can file for a change of status (e.g. from B1/B2 to TD) by mail using form I-539. The advantage of this option is that the applicant would not need to depart the U.S. The individual's TD status would be issued by mail in the form of an I-797 form with an I-94 card at the bottom. This document would allow the TN visa worker's spouse to remain in the U.S. for the validity of his/her spouse's TN status.

However, the I-797/I-94 form obtained through the mail-in process does not provide TD visa status holders with the ability to travel in/out of the U.S. (there can be a limited exception to this rule for trips to Canada/Mexico for less than 30 days). Such individuals would still have to obtain a TD visa stamp at a U.S. consulate in order to subsequently travel in/out of the U.S. under the approved TD status.