The Law Office of Brian D. Zuccaro, PLLC

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CORONAVIRUS (COVID-19) IMPACT ON TN VISAS - UPDATED 5/12/2020

Brian D. Zuccaro

The 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 TN VISA FILINGS

  • President Trump’s April 22, 2020 proclamation did not suspend non-immigrant visa applications, e.g. for TN visas. However, Trump indicated that within the next 30 days he will be reviewing the non-immigrant visa classifications, and may seek “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” This could possibly result in the denial or limitation of admission of non-immigrant workers to the U.S., which could include TN visa workers.

  • Nevertheless, the Dept. of State had already suspended non-immigrant visa operations, which include TN visas, for Mexico beginning March 18, 2020. Consular operations remain suspended.

  • Non-immigrant visa appointments including for TN visas may still be available on a limited basis for emergency travel only.

  • The U.S. Dept. of State has indicated that medical professionals may also 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 TN FILINGS

  • President Trump’s April 22, 2020 proclamation did not suspend TN filings at Pre-Flight Inspection offices in Canada. However, as stated above, Trump indicated that he will be reviewing the non-immigrant visa classifications, and may place restrictions on non-immigrant visas. This could possibly result in the denial or limitation of admission of non-immigrant workers to the U.S., which could include TN visa workers.

  • The U.S./Canadian border closure, which has been extended until May 20, 2020, 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).

CANADIAN CITIZENS & LAND BORDER TN FILINGS

  • President Trump’s April 22, 2020 proclamation did not suspend TN filings at land borders. As stated above, if Trump places restrictions on the non-immigrant visa classifications, this could possibly result in the denial or limitation of admission of non-immigrant workers to the U.S., which could include TN visa workers.

  • Currently, TN filings at the border may be possible, but applicants should exercise caution. The U.S./Canadian border closure, which has been extended until May 20, 2020, limits travel by land through the U.S./Canadian border to “essential travel”.

    • Essential travel is stated to include: “Individuals traveling to work in the United States”. See Notification of Temp. Travel Restrictions, pg. 4.

    • Some USCBP offices are continuing to process TN applications. As of 5/12/2020, the Peace Bridge Buffalo, NY port-of-entry is still processing TN visa applications. As of 5/1/2020, the Peace Arch Blaine, WA 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.

OTHER TRAVEL RESTRICTIONS MAY IMPACT ABILITY TO FILE

  • Further travel restrictions may limit available filing options.

  • 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) and Peace Arch port-of-entry (Blaine, WA) 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 (i.e. flag poling), 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).

More info on initial TN visa filings.

Travel with Existing TN Visa / Status

  • May be permissible with valid TN visa documentation.

  • However, travel by land through the U.S./Canadian and U.S./Mexican border is restricted to “essential travel” due to border closure described above.

    • 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 and U.S./Mexico 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).

  • 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.

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

  • More info on TN visa amendments.

Layoff / Termination of TN Visa Employment

  • If a TN visa worker is permanently 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 and changing to B-2 status by mail.

Extension of / Change to TN Visa Status By Mail

  • Mexican Citizens - Due to the suspension of consulate operations in Mexico, 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 - “Renewals” of TN status may still be obtained at a Pre-flight Inspection office in Canada or at the U.S. border as described above. If more severe travel restrictions are imposed, or if President Trump issues a proclamation suspending the admission of non-immigrant workers, 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.

  • USCIS has suspended 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”.

  • Employers can file I-129 petitions 6 months in advance of a TN worker’s I-94 expiration. 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

TN to Green Card Filings

TN TO GREEN CARD FILINGS VIA IMMIGRANT VISA PROCESSING

  • President Trump’s April 22, 2020 proclamation has suspended entry to the U.S. for individuals applying for their green card through immigrant visa processing at a U.S. consulate/embassy. This suspension is to last 60 days, but may be extended. There are several exceptions to this suspension, e.g.:

    • Individuals who have already received immigrant visa stamps, and that are still valid as of April 23, 2020.

    • Individuals with immigrant visas who will work in the U.S. as a “physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak.”

    • Individuals with immigrant visas approved under the EB-5 investor visa program.

    • Individuals who are the spouse of a U.S. citizen.

  • Immigrant visa processing has already been delayed due to the closure of U.S. consulates/embassies (see above).

TN TO GREEN CARD FILINGS VIA ADJUSTMENT OF STATUS

  • The proclamation does not suspend the filings or processing of Adjustment of Status filings.

  • However, processing of these applications have been delayed due to USCIS office closings.

FURTHER INFORMATION: