Question: I was subject to the 10 year bar for unlawful presence, and had obtained a waiver to enter the U.S. as a visitor. The 10 year bar has passed. I would now like to apply for a TN visa. How do I file for the TN visa?

Reply: Generally, an individual who remains in the U.S. past the expiration date of his/her I-94 will begin to accumulate unlawful presence. An individual who accumulates more than 180 days but less than 1 year of unlawful presence, and who then departs the U.S. prior to the commencement of removal proceedings, will be subject to a 3 year bar to the U.S. INA § 212 (a) (9) (B) (i) (I). If a person accumulates 1 year or more of unlawful presence, and departs the U.S., he/she will be inadmissible to the U.S. for a 10 year period. INA § 212 (a) (9) (B) (i) (II). A person barred to the U.S. due to unlawful presence may still temporarily travel to the U.S. by filing an I-192 waiver application. INA § 212 (d) (3).

If the only ground of inadmissibility is the accrual of unlawful presence, once the unlawful presence bar expires, an individual may then seek admission to the U.S. without the need for a waiver. However, U.S. immigration will still have a record of inadmissibility in its system, and it may not be readily apparent to the inspecting officer that the unlawful presence bar has expired. Individuals in this scenario should be prepared to explain and document how they are no longer inadmissible to the U.S.

Individuals interested in applying for TN visa status, in addition to documenting their eligibility for the TN, should also document that they are no longer subject to the 3 or 10 year bar for unlawful presence. Such documentation may include:

1. A copy of the I-194 waiver approval notice. This document provides the specific ground of inadmissibility, and therefore will inform the officer that the applicant was inadmissible to the U.S. for 3 or 10 years under INA § 212 (a) (9) (B) (i) for being unlawfully present in the U.S.

2. Documentation evidencing departure from the U.S. This is a critical piece of evidence as the officer will need to determine when the 3 or 10 year bar began and when it expired. A passport admission stamp is ideal.

3. Proof of presence outside the U.S. for duration of the unlawful presence bar. E.g. records of employment, tax records, school records, mortgage/lease documentation, financial records, etc.

Citizens of Canada, who generally apply for their TN visa status directly at a U.S. port-of-entry, may need to present this documentation to the U.S. CBP inspecting officer to overcome any concerns of inadmissibility. Citizens of Mexico, who generally need to first apply for a TN visa stamp at the U.S. Consulate, would present these materials to the U.S. Consular officer.

As the new DS-160 visa application form requires applicants to acknowledge if they have ever been unlawfully present in the U.S., it is likely that citizens of Mexico who were previously inadmissible due to unlawful presence will be questioned on this issue during the consular interview.