TN VISA STATUS: LAY-OFFS & DEPARTURES

Question: I'm a Canadian citizen working in the US under TN visa status. I have recently been permanently laid off from my employer effective Feb 27, 2009. I understand that I must return to Canada "immediately" once my employment ceases. What defines immediately?

My visa was to expire Jan. 2010. I have given my landlord notice that I will be moving out at the end of the month. Is it a problem to vacate my apartment on Feb 28, 2009 and return to Canada March 1, 2009? Am I violating my status by leaving 2 days later?

Also, what confirms my status of leaving the US, the stamping of my passport when I return to Canada on March 1/09? What do I do with my I-94 form? Do I ask Canadian Immigration to take it and forward it to US immigration? Or will the passport stamp that I returned to Canada suffice?

Reply: Contrary to popular belief, there is no grace period (e.g. 10 days) for departure in this scenario. See E. Hernandez Letter (March 2001). Technically, you must depart the U.S. upon the effective date of your termination / lay-off.  Alternatively, you can file a petition to change employers, or a petition to change status to another non-immigrant category. This petition should be filed before the effective date of your layoff. Otherwise, the change of status request could be denied as untimely (although late filings may be excused in limited situations).

If you fail to depart by the lay-off date, or fail to timely file for a change of employer or status, you will be violating your immigration status. If the violation comes to the attention of U.S. immigration authorities, you could be placed in removal (deportation) proceedings. The violation may also make it more difficult for you to subsequently re-enter the U.S.

The best practice is to depart the U.S., or file a petition to change employers or for a change of status by the effective date of the lay off. It may help to speak with your employer to explain your immediate departure requirement. They may extend the effective date of you termination so that you can make arrangements for departure or have additional time to file a change of status application.

To document your departure from the U.S. you must surrender your I-94 card. It is also a good practice to have your departure documented by the stamping of your passport upon return to Canada. I also recommend retaining or obtaining documentation from the employer stating the effective date of your termination. This letter can establish that you timely left the U.S. upon termination of your employment when compared with the date you surrendered your I-94 and the admission date stamped in  your passport .