Canadian on TN Visa and Pregnant

I am a Canadian on a TN Visa that expires in Jan.2010. I just found out that I am pregnant. Can I have this baby in the US, as I would be taking unpaid maternity leave and therefore wouldn't be working. I know if you are not working you have to leave the US. If I can stay, can I file for EI while on maternity leave to help out?

In the US you would only be eligible for maternity leave of 6 weeks. UNpaid.

I know I only get a few weeks, I think I can get 12 weeks unpaid, but what does that mean for my TN status as you are supposed to leave the US in 10 days if you are not working. So would I be in status violation being on maternity leave? That is my main concern. Any ideas?

The law is basically silent in these situations on TN-1. If you were on H-1B there would be more guidance but the CFR on TN-1 is pretty short. You'd need a court to rule on it to get a definitive answer.

If you're actually still employed by your employer and your status is still valid during your leave and still valid after your leave then I can't see you have a problem really. Your employer is not required to notify USCIS of the leave, you haven't been laid off or fired or anything like that.

If you fall ill for an extended period what you're supposed to do iirc is change status to B-2, but this is not the case here, you're on leave. On H-1B you are allowed to take maternity leave and remain in that status, I assume if it ever got to a court they would take a similar approach with TN-1.

If you're baby is due prior to the expiry on your TN visa, then you can have the baby in the U.S.

To be honest what Steven said is actually the truth. The law is "silent" when it comes to knowing how long you can stay after your visa expires. Just to play it safe, I would leave prior to my visa expiring just to avoid complications. If you have the baby in Canada, I'm sure the medical fees obviously wouldn't be as much as they would bill you in the U.S.

You really don't want to give the DHS any amunition to go on as to why you didn't leave on the specified date stated on your I-94.

As for the mat leave....6 weeks unpaid? That really depends on the state you reside in. That is all dependent on your occupation as well. Not every state has this rule

You do not have to leave if you are still employed, even if you are on an unpaid maternity leave, just like TN-1 workers did not have to leave the US when Silicon Valley had the unpaid weeks off in 2001. It is like you were on vacation. Do not complicate your life over this matter. If you are due during or after the expiration of your TN-1 visa, then apply for a new TN-1 by mail at the Nebraska Processing Center, instead of re-entering the US to get another one. You may want to do the research or hire a COMPETENT lawyer to assist you on this. Having your child in the US is a good thing. For one, your child will have both Amercan and Canadian citizenship. It is always good to have choices. Also, if you are like most TN-1 visa holders, you probably have excellent health insurance in the US. You will get far better healh care prior to, during, and after your delivery in the US than you would in Canada.

by JR_VAN » Fri Jun 05, 2009 5:32 pm

You do not have to leave if you are still employed, even if you are on an unpaid maternity leave, just like TN-1 workers did not have to leave the US when Silicon Valley had the unpaid weeks off in 2001. It is like you were on vacation. Do not complicate your life over this matter. If you are due during or after the expiration of your TN-1 visa, then apply for a new TN-1 by mail at the Nebraska Processing Center, instead of re-entering the US to get another one. You may want to do the research or hire a COMPETENT lawyer to assist you on this. Having your child in the US is a good thing. For one, your child will have both Amercan and Canadian citizenship. It is always good to have choices. Also, if you are like most TN-1 visa holders, you probably have excellent health insurance in the US. You will get far better healh care prior to, during, and after your delivery in the US than you would in Canada.

I guess so.

At the end of the day, you are going to do what's right for you and the unborn you are carrying. Good Luck with everything!

The law is "silent" when it comes to knowing how long you can stay after your visa expires.

That's not what I meant, if your status expires you have to leave even if you're on maternity leave - if you can't leave for medical reasons you have to change status to B-2. If your status hasn't run out while on leave, then you don't have to do anything.

Alternatively you can get your employer to file an I-129 and have TN-1 status granted again.

-- Fri Jun 05, 2009 4:41 pm --

For one, your child will have both Amercan and Canadian citizenship. It is always good to have choices. Also, if you are like most TN-1 visa holders, you probably have excellent health insurance in the US. You will get far better healh care prior to, during, and after your delivery in the US than you would in Canada.

I'm not sure it's quite as clean cut as that, there are disadvantages as well, for example if the father is a US citizen or LPR then it gets complicated to go back and forth across the border because the mother either has to be accompanied by the father or have the father's permission to travel with the child (unless the mother has sole custody) so that opens up a whole can of worms with CBP about non-immigrant intent.

Also there are obligations that go along with US citizenship, but they don't really amount to anything until adulthood.

Thank you all for your input. I has eased my mind know I won't be in violation of my TN Status....It doesn't expire until Jan 2012...I made a mistake on the year. I guess now my concern is that I have to travel to Canada in Sept when I will clearly be showing the pregnancy, and if I will run into any trouble getting back into the US. Any thoughts???
Is that really true that I would have to travel with the father or have his permission to travel with the baby even if I register the baby with the Canadian government after it's birth??? That seems messed up since the child will have dual citizenship.