In January of 2017, United States Citizenship and Immigration Services made a significant change to the ways in which certain employment-based visa holders are treated in the event that their employment positions that qualified them for their visas are terminated. Specifically, this rule change allows for a 60-day grace period before the visa status of the immigrant who has been terminated from employment will be considered noncompliant due to a “failure to maintain nonimmigrant status.” This rule change also applies to the spouses and qualifying dependent children who have accompanied eligible visa holders to the U.S.
Although the rule change is part of a rule change package referred to as “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” it doesn’t just apply to EB visa holders. It applies to TN, H-1B, H-1B1, L-1, and O-1 visa holders as well. It is important to understand that the Department of Human Services reserves the right to shorten or eliminate this grace period at its discretion. Also note that if the visa holder’s eligibility period was set to expire in fewer than 60 days when their employment position was terminated, their grace period will only extend to the end of their eligibility period.
Why Does This Grace Period Exist?
Before the USCIS changed long-time immigration policy to allow for this grace period, all visa holders facing termination of the employment position that qualified them to enter the country were immediately considered noncompliant with the terms of their visas. Even though TN visa holders and other affected visa holders contribute significantly to the American economy, there was no mechanism for them to easily request a transfer of status or to seek additional employment opportunities.
By approving the 60-day grace period, the USCIS made it easier for visa holders facing termination of their employment positions to look for alternative employment and to obtain transfers in their status. However, it is important to note that no visa holder affected by this grace period can begin employment in a new position during the grace period. Only when they have completed necessary steps to transfer their status and/or transfer employers, may the legally work in a new capacity.
What Should a TN Visa Holder Do After They Are No Longer Employed?
When a TN professional loses their qualifying job, they can’t begin work at a new company until they have taken certain steps. Note that it is important to secure a new qualifying employment opportunity before leaving the country, or it will be much harder to reenter in a timely fashion. During the grace period, Mexican citizens must exit the country and reenter at the border. Upon reentry, they must show border officials a letter of support from their new employer. If a Mexican citizen or their new employer has a question about what this letter needs to contain, an experienced immigration attorney can help.
If a Canadian citizen obtained a TN visa before entering the U.S. to work, they must also take time during the grace period to exit the country. They will need to reapply for a new TN visa associated with a new, eligible employer and position before reentering the U.S.
Petitioning For Your TN Visa Status
Any TN visa holder may also choose to submit an I-129 petition concerning their new position, via postal mail, during the grace period. However, it’s important to remember that these petitions take up to two months to process. Unless the TN visa holder has a new employment position lined up immediately in the wake of the termination of their first position, they shouldn’t trust that they will have enough time to have their request properly processed before their 60-day grace period expires. If the TN visa holder is willing to pay a hefty premium processing fee however, this postal option can be processed in 15 days from the date it is received by the government.
It’s important to remember that TN visa status is employer-specific. This means that if a TN visa holder is transferred by their employer from one position to another, this does not result in a change in visa status or initiate a grace period. As long as the TN visa holder remains employed at the same office, a different office owned by the same employer, a branch, satellite, parent company, or affiliate office, no additional authorizations need to be obtained.
Visa Assistance Is Available
If you are a TN visa holder and you have questions about how your employment status may affect your visa compliance or you need assistance updating your status, please schedule a consultation with a knowledgeable immigration attorney at LawTrades today. Our team has extensive experience assisting foreign nationals and sponsoring employees with all aspects of the immigration process. We look forward to speaking with you and answering any questions you may have.