To CBP, or Not To CBP…That Is the Question For Canadian TN Visa Applicants

Canadian citizens have 2 options when applying for TN visa work authorization: (1) they can file a TN application at the U.S. border with U.S. Customs & Border Protection (CBP); or (2) their employer can file an I-129 petition by mail for them with U.S. Citizenship & Immigration Services (USCIS). The following provides some of the pros and cons of each filing option.

Pros of Filing Application at Border With CBP:

• Speed: If approved, applicants receive their work authorization on the spot and can begin working immediately.

• Less Paperwork: The employer generally needs to only provide a signed support letter requesting TN visa status on behalf of the applicant.

• Cheaper: The government filing fee is $56 (land border) / $50 (airport).

Cons of Filing Application at Border With CBP:

• Can Be More Adversarial: CBP tends to be more enforcement-minded. Applicants must be interviewed in person. CBP may be unwilling to consider nuances in a case, or review evidence in support of more complicated or atypical cases.

• Locked Out: If denied, applicants may not be allowed re-entry to the U.S. under a pre-existing TN, or may have difficulty re-entering as a visitor.

• Could Face Penalties: If CBP believes an applicant previously committed an egregious immigration violation, or is doing so in the context of the TN application, CBP could expedite remove the applicant, which results in a 5-year bar to the U.S. If CBP believes that an applicant previously made false statements or has made false statements in the TN application, CBP can charge the applicant with fraud, which carries a life-time bar to the U.S.

Pros of Filing TN Petition By Mail With USCIS:

• Can Be Less Adversarial: USCIS may be more willing to consider nuances in a case, or accept evidence in support of more complicated or atypical cases.

• Home Sweet Home: If already in the U.S., applicants can remain in the U.S. and generally continue working if the case is challenged by USCIS. (The agency will generally first issue a Request for Evidence if it has questions about TN eligibility.)

• No Interview: When filing by mail with USCIS, applicants are not required to have an interview with an immigration officer. The case is decided on paper only.

Cons of Filing TN Petition By Mail With USCIS:

• More Paperwork: In addition to all of the documents generally needed for a border application, employers must also sign off on an I-129 petition. Proof of current visa status may also be required if already in the U.S.

• Lengthier Processing: USCIS review of the I-129 petition can take months unless the case is filed via premium processing for a review in 15 days.

• More Expensive: the government filing fee for an I-129 petition is $460. Premium processing is an additional $2,500 fee. To extend the TD status of family members, the I-539 filing fee is $370.