The Law Office of Brian D. Zuccaro, PLLC

View Original

CORONAVIRUS (COVID-19) IMPACT ON TN VISAS - UPDATED 4/13/2020

Brian D. Zuccaro

he following provides an overview of current and potential impacts on the TN visa classification due to the Coronavirus pandemic. As filing and travel restrictions are subject to change, please review all applicable agency information or speak with an attorney prior to traveling or filing your TN visa application.

INITIAL / “NEW” TN VISA APPLICATION FILINGS

  • Mexican Citizens -

    • U.S. Embassy / Consulate Filings -

      • Suspended for Mexico beginning March 18, 2020.

      • Exceptions on a limited basis for emergency travel only.

      • The U.S. Dept. of State has indicated that medical professionals may still be eligible to obtain visa appointments, but appear to limit this to H-1B and J-1 visa holders. TN visa medical professionals should contact the U.S. Embassy for further information and/or attempt scheduling an appointment through the government’s emergency travel procedures.

  • Canadian Citizens -

    • Pre-flight Inspection Filings -

      • The U.S./Canadian border closure does not apply to air travel between the U.S. & Canada. See Notification of Temp. Travel Restrictions, pg. 5.

      • This means that Canadian citizens should be able to apply for TNs at applicable Pre-flight Inspection offices at Canadian airports, provided no other travel prohibition applies (e.g. regarding Canadian international flights).

    • Land Border Filings -

      • Travel by land through the U.S./Canadian border will be restricted to “essential travel” beginning March 20, 2020 at 11:59 PM ET until April 20, 2020 at 11:59 PM ET.

      • Essential travel is stated to include: “Individuals traveling to work in the United States”. See Notification of Temp. Travel Restrictions, pg. 4. Presumably this encompasses individuals applying for work visas at the U.S./Canadian border. However, there has been varied interpretation by CBP offices as to what constitutes “essential travel”.

      • Some USCBP offices are continuing to process TN applications. As of 4/9/2020, the Peace Bridge Buffalo, NY port-of-entry is still processing TN visa applications.

      • Other POEs have indicated that they are waiting for guidance from USCBP headquarters. For example, I have seen one report that the Derby Line, VT port-of-entry is not adjudicating TN applications at this time. Applicants should exercise caution until USCBP verifies applications can still be filed, and consider contacting the applicable port-of-entry for further information.

    • Further domestic travel restrictions and/or border closure provisions may restrict any available filing options in the future.

      • For example, on March 25, 2020, Canada announced an Emergency Order that requires a mandatory quarantine for individuals entering Canada by air, sea, or land for 14 days whether or not they have symptoms of Covid-19. Violating the quarantine could “lead to up to 6 months in prison and/or $750,000 in fines.”

      • As result, Canadian citizens in the U.S. who travel to Canada to later file for TN status at a Pre-Flight Inspection office or land border may need to quarantine first for 14 days. There are some exemptions to this order, e.g. for individuals who “cross the border regularly to go to work”.

      • According to a recent report (4/7/2020), Canadian border officers at the Peace Bridge port-of-entry (Buffalo, NY) have advised that if an individual is entering Canada from land and is immediately turning around to apply for TN status at the U.S. border, then the individual does not have to undergo a mandatory quarantine in Canada.

    • I-129/Mail-in Filings (Canadians only) -

      • Available. However, subject to above possible border closure / limitations when seeking entry to the U.S. with approved TN petition.

      • Additionally, USCIS’ suspension of premium processing may render advance I-129 filings impractical (see below).

  • DHS has announced it will defer the physical presence requirements for completing Form I-9 for employees working remotely.

  • More info on initial TN visa filings.

TRAVEL WITH EXISTING TN VISA / STATUS

  • Mexican & Canadian Citizens -

    • May be permissible with valid TN visa documentation with some restrictions. Additionally, both Canadian and Mexican land borders will be closed to essential travel only.

  • U.S. / Canada Border -

    • Travel by land through the U.S./Canadian border will be restricted to “essential travel” only beginning March 20, 2020 at 11:59 PM ET until April 20, 2020 at 11:59 PM ET.

    • Essential travel includes: “Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work)”.

    • Again, as with the adjudications of TN applications at the border, there is uncertainty at the USCBP ports as to what constitutes “essential travel”. I have seen at least one report of an individual with a valid TN be denied entry at a land border because the officer believed his entry was not for “essential travel”.

    • TN visa holders should exercise caution when traveling, and should consider postponing any travel until USCBP confirms specifically that individuals with existing, valid work visas may still enter the U.S. by land.

    • Air travel between the U.S. & Canada is not currently subject to the border closure.

    • Individuals traveling to Canada may have to quarantine themselves for 14 days from arrival before attempting any return to the U.S. (see above).

  • U.S. / Mexico Border -

    • Mexican border travel will also be restricted to “essential travel” starting March 21, 2020 for 30 days.

  • Possible other travel restrictions may limit the ability to travel and return to the U.S. in the future.

REMOTE WORK OR HOUR REDUCTION UNDER EXISTING TN VISA / STATUS

  • The TN visa regulations do not specifically address whether an application for a new TN or amended petition must be filed to reflect an individual’s working from home, or a change from full-time work to part-time, or for any other reduction in work hours.

  • An argument can be made that if a TN visa worker remains employed by the same company and is performing the same job duties, then a new TN filing is not required to reflect the individual’s working from home.

  • Likewise, an argument can be made that if a TN visa worker remains employed by the same company and is performing the same job duties, then a new TN filing is not required to reflect a change in hours.

  • Otherwise, a more conservative approach would be to file a new TN application / or an amended I-129 petition to reflect the change.

  • More info on TN visa amendments.

CESSATION OF TN VISA EMPLOYMENT

  • If a TN visa worker is laid-off or otherwise stops employment with his/her employer, the TN visa worker may be eligible for a grace period to remain in the U.S. without penalty.

  • During this time, the individual may apply for a new TN, apply to change visa classifications (e.g. to B1/B2 visitor status), or make preparations to depart the U.S. The individual cannot work during the grace period.

  • The grace period lasts for either 60 days, or up until the expiration date of the individual’s I-94 record, whichever comes first.

  • More info on the grace period.

EXTENSION OF / CHANGE TO TN VISA STATUS BY MAIL

  • Mexican Citizens - Available. An I-129 petition filing may be the only option available for Mexican citizens to extend/renew their TN status, or change to TN status, starting March 18, 2020.

  • Canadian Citizens - Available. If more severe travel restrictions are imposed, or if the U.S./Canada border closure prohibits TN visa filings, an I-129 petition filing may be the only option available for Canadian citizens to extend/renew their TN visa status, or change to TN status.

  • However, USCIS is now suspending premium processing for all I-129 petitions effective March 20, 2020. This may make usage of the I-129 form for changes of status or changes of employer prohibitive as regular processing of I-129 TN petitions can take approx. 2-4 months. Applicants could try seeking expedited processing of the I-129, e.g. if the applicant / employer would face “severe financial loss”.

  • Individuals applying by mail for an extension of their TN visa status must file their I-129 petition before their I-94 expires. A TN visa worker whose I-94 has expired, but who has filed a timely I-129 petition for an extension of status is allowed to continue working for the same employer for 240 days past the expiration date of his/her I-94. More on Extension of Status.

  • USCIS has granted some flexibility in responding to Requests for Evidence (RFE). Individuals who have filed I-129 petitions and have received an RFE dated between March 1 and May 1, 2020 will be provided an additional 60 days to respond to their RFE.

  • USCIS has also stated that the late filing of an Extension of Status or Change of Status application may be excused if the failure to file on time, i.e. prior to the expiration date of one’s I-94 (or grace period, if applicable), “was due to extraordinary circumstances beyond their control” caused by the Covid-19 pandemic.

  • More info on TN visa extensions, change of status, & change of employer

FURTHER INFORMATION: