TD VISA STAMP NOT ALWAYS ESSENTIAL FOR NON-CANADIAN / MEXICAN SPOUSES

Question: I obtained TN visa status in Sept. 2008, right before the new three year TN visa rule. My wife isn’t a Canadian citizen and needs a TD visa. My wife has an appointment with the U.S. Consulate in Toronto for her TD visa this month.

I am planning to stop by at the U.S. port of entry on my way to Toronto for the appointment with the U.S. Consulate. During this visit to the port, I want to apply for the extension of my TN for three years so my wife can also get her TD visa for 3 years from the Consulate. Can my TN be extended to three years at this time even though I already have a valid TN, which has 6 months to expire?

Reply: Generally, requesting an extension at the border six months in advance of the expiration of your I-94 may pose a problem. Unless there is a change in your employment circumstances, e.g. a change in employer or TN category, I don’t think you have a strong case for a three-year TN at this point.

Have you considered requesting your TN extension and your wife's TD by mail with USCIS? You can file an I-129 petition for the extension of your TN status by mail six months in advance. You can also obtain TD status for your wife by filing an I-539 application for a change of status from B-2 to TD at the same time.

Once USCIS approves the I-129 petition and I-539 application (generally within 2-3 months), your wife can use her TD approval notice (I-797) to obtain a TD visa stamp at the consulate. The TD visa stamp is only required if your wife needs to enter the U.S. If she doesn’t need to travel outside the U.S., she doesn’t need the TD visa stamp.

Even if she does need to travel outside the U.S., she may re-enter without a valid TD visa stamp in certain situations. If your wife has a valid I-797/I-94 for TD status, she may travel to Canada or Mexico for trips of thirty days or less and re-enter the U.S. by presenting her expired visa stamp and valid I-797/I-94 based on the “visa re-validation” provisions (note: she can’t file for a TD visa at the consulate to take advantage of this provision).