OPTIONS TO CHANGE STATUS TO TN VISA WHEN SPOUSE NOT CANADIAN CITIZEN

Question: I am a Canadian citizen currently in the U.S. under F-1 status. My spouse is on F-2, but is not a Canadian citizen. What are my options to apply for a TN, and how would my spouse obtain TD status?

Answer: Having a spouse who is not a Canadian citizen complicates your case because he/she generally requires a TD visa stamp to travel to the U.S. I have outlined the 3 potential options available below with the pros and cons of each. However, you will see that the third option is not recommended.

Step 1:

Border - Everyone departs the U.S.

Both by Mail - File an I-129 petition to change status to TN visa status. At same time, file I-539 application to change the spouse's status to TD visa status.

Border / Mail - TN applicant departs U.S. Spouse remains in the U.S.

Step 2:

Border - Apply for TN visa status at border.

Both by Mail - Wait for regular processing (approx. 2 months), or premium process to receive decision in 15 days (extra $1,225 filing fee).

Border / Mail - File application for TN at border.

Step 3:

Border - If TN visa status is approved, the spouse must then apply for a TD visa stamp at a U.S. Embassy/Consulate. Depending on waiting and processing times, the spouse may have to spend a period of time outside the U.S. until the TD visa stamp is issued.

Both by Mail - Status is changed to TN and TD upon approval.

Border / Mail - After entry under TN, file I-539 application to change spouse's status to TD status.

Notes:

Border - The advantage of this step is that the spouse will receive travel authorization, which is not received in the other options.

Both by Mail - Two disadvantages: (1) No one can travel while these petitions are pending (abandoned otherwise); (2) The spouse does not receive travel authorization. A TD visa stamp would generally still be required afterwards.

Border / Mail - Not a viable option. Entry on TN validates spouse's F-2 status. Change of status is not available if applicant cannot show that he/she maintained current status.