MEXICAN TN VISA WORKERS TRAVELING WITH EXPIRED VISAS AFTER EOS
Question: I’m a Mexican citizen currently working under TN visa status. I’m planning to file for a TN extension using form I-129. My question: Once the extension is granted, am I able to leave the country to travel?
Considering that my status could be extended for up to 3 years I would like to know if I could visit my family with the extended TN status but with an expired TN visa stamp in my passport.
Reply: As you infer, there is a difference for citizens of Mexico who file for an extension of TN status (EOS) via mail using form I-129, as opposed to those who obtain a new or “renewal” TN visa stamp at the U.S. consulate.[1]
Citizens of Mexico currently in the U.S. under TN visa status may extend their TN visa status by mail using form I-129. Mexican citizens who file an I-129 petition for an extension of their TN visa status will receive an I-797 approval notice with an I-94 card attached at the bottom. This document serves as evidence of the TN visa worker’s ability to reside in the U.S. and continue working for his/her employer. Work authorization may be extended by this procedure without going to the U.S. consulate for a new TN visa stamp. This work authorization also remains valid even after an individual’s TN visa stamp expires.
However, the I-797 form does not by itself permit a citizen of Mexico to exit and then re-enter the U.S.[2] Citizens of Mexico must possess a valid TN visa stamp in their passport in order to travel to the U.S. Thus, it is possible for Mexican citizens to have received an extension of their TN visa status and work authorization, but not have the authorization to depart and return to the U.S. under that TN visa status. Such individuals would have to subsequently file a DS-160 application to obtain a new TN visa stamp at the U.S. consulate.
TN Visa Travel:
Mexican citizens generally need a TN visa stamp to travel. One exception: the visa revalidation provisions can allow Mexican citizens to re-enter the U.S. with an expired TN visa stamp in limited situations.
There is, however, one exception to the rule requiring citizens of Mexico to have a valid TN visa stamp in order to travel to the U.S. This exception is known as "visa revalidation" and allows an individual to return to the U.S. despite having an expired visa stamp. A TN visa worker may take advantage of visa revalidation provided he/she:
Possesses an I-797 form with an I-94 card evidencing an unexpired period of TN status.
Has only traveled to either Canada or Mexico for a period not exceeding 30 days.
Has maintained and intends to resume his/her TN nonimmigrant status.
Is applying for readmission within the authorized period of his/her extension of TN status.
Did not apply for a new TN visa during his/her visit to Mexico or Canada.
Does not require a waiver as result of being subject to a ground of inadmissibility.
Has a valid passport. See 9 FAM 41.112 N8.
If a TN visa worker abides by the conditions above, then he/she should be allowed to depart and return to the U.S. with his/her I-797 extension of status approval form despite having an expired TN visa stamp in his/her passport.
As some CBP border officers may not be aware of the visa validation provisions, TN visa workers in this scenario should consider traveling with a copy of 9 FAM 41.112 N8 in order to facilitate re-entry to the U.S.
[1] See 9 FAM 41.112 N1 for the distinction between TN visa immigration status (i.e. the length of time permitted to reside and work in the U.S. governed by an I-94) and a TN visa stamp (i.e. the document that simply allows one to travel and seek admission to the U.S.).
[2] The I-797 form, however, does permit Canadian citizens to exit and re-enter the U.S. Canadian citizens are visa exempt and, thus, do not need to obtain a TN visa stamp in their passport in order to travel to the U.S. under TN visa status. The I-797/I-94 form is sufficient for Canadian citizens’ travel purposes.