TN Visa Worker Options After Covid-19 Layoff
TN visa workers who are permanently laid-off or who otherwise cease employment with their employer due to the Coronavirus (Covid-19) pandemic or for other reasons may be eligible for a grace period allowing them to remain in the U.S. without penalty. During the grace period, these individuals may:
Apply for a new TN
Apply to change to a different visa classification (e.g. to B1/B2 visitor status)
Make preparations to depart the U.S.
Individuals cannot work during the grace period. The grace period lasts for either 60 days from the TN visa worker’s last day of employment, or up until the expiration date of the individual’s I-94 record, whichever comes first. Remaining in the U.S. after one’s grace period ends is a status violation that could result in removal. Status violations can also make it more difficult to subsequently re-enter the U.S. under TN visa status or other visa classifications. Remaining in the U.S. for more than 180 days past one’s I-94 expiration date can result in being barred from re-entering the U.S. for 3/10 years due to unlawful presence.
In some cases, the grace period available to a TN visa worker may not provide sufficient time for the worker to wind down his/her affairs, or travel restrictions implemented in response to the Coronavirus (Covid-19) pandemic may make it difficult or impossible for a TN visa worker to depart the U.S. prior to the expiration date of his/her grace period. In this scenario, a TN visa worker can submit an I-539 application by mail to USCIS to change his/her status from TN visa status to B-1/B-2 visitor status to obtain potentially up to an additional 6-month period of stay.
To establish eligibility for B-1/B-2 visitor status in this scenario, individuals generally must meet the following basic requirements:
Have a residence outside the U.S. that they have no intention of abandoning.
Request to remain in the U.S. for permissible B-1 business / B-2 visitor activities (e.g. to wind-down their affairs for departure from the U.S.).
Request to remain in the U.S. for a specific, limited period in the U.S. (generally 6 months or less).
Have not engaged in unauthorized employment during their grace period, and will be not engaging in any employment in the U.S. during the requested period of stay.
Have sufficient financial resources to cover their expenses during the proposed period of stay.
Important processing notes for this type of I-539 application filing:
An I-539 application must be filed prior to an individual’s grace period end date. Filing the I-539 application timely results in the applicant being in a period of “authorized stay” permitting the applicant to remain in the U.S. while the application is pending (even if the individual’s I-94 record subsequently expires). Timely filing the application also prevents the applicant from accumulating unlawful presence, which can result in subsequent bars to returning to the U.S. (In its discretion, USCIS may excuse a late filing if the delay was due to “extraordinary circumstances beyond your control”.)
All applicants must be physically present in the U.S. on the day the application is received at USCIS. Individuals cannot travel while the I-539 application is pending. Because this is considered a “change of status” process, any departure from the U.S. while the application is pending will result in the denial of the application. Additionally, individuals who depart the U.S. will not likely be allowed to re-enter the U.S. for the balance of their grace periods, and may have to establish eligibility for re-entry to the U.S. under the B-1/B-2 visitor classification requirements. Applicants in this scenario, therefore, should not exit the U.S. at this time, or while the I-539 application is pending.
Generally, within 1-2 months of filing the application, the applicant and his/her family members (including children) will be scheduled for a biometrics appointment. However, due to the current Covid-19 pandemic, the Application Support Centers that handle these appointments are currently closed until at least May 3, 2020 (potentially longer). Current processing times for an I-539 application are approximately 6-8 months. However, the time frame may likely be longer given the current Covid-19 crisis and office closures.
If the I-539 application is not approved by the requested end-date of an individual’s proposed B-1/B-2 period of stay, it is recommended that applicants still depart the U.S. by their requested B-1/B-2 end-date. Otherwise, if the I-539 application is later approved, the government may only grant the approval for the B-1/B-2 period of stay requested in the application, which could leave an individual without status following approval of the application.
If approved, applicants and their family members will automatically be transitioned to B-1/B-2 status, and an I-797 approval notice will be issued with I-94 records indicating the approval period of the B-1/B-2 status.
TN visa workers who have been laid off due to the Covid-19 pandemic can schedule a consult with our office to discuss their options including a possible I-539 change of status application filing.