Question for Status Change for TN1 to B2

[sbgamatt]

I just lost my job on May 4, 2009 two days ago on a TN1. My TN1 visa will expire in Mar 2012 had I not lost my job. As far as I understand I need to leave the US asap.

The question is how can I change to B2 so i can tidy up and move my things. 1) Can I efile Form I-539, pay $300 and wait for the outcome and look for a job while waiting or 2) should I go to the nearest POE and apply for B2 visitor visa which is risky.

I am afraid if I go to the nearest POE, they may deny B2 visa and also deny entry back to the US. That will make things worse for me up because I have an apartment full of stuff I need to move.

If option 1 and 2 are not feasible? how many extra days after being laid off am I allowed to stay before I leave the US?

Could someone help give me some advice?

[Reba]

The generally accepted length of stay after you've lost your job, or TN has expired is 10 days.

Sorry you got laid off, but you're best to just start packing asap. If you can only get some of it moved first trip, they'll let you back in to retrieve the rest, but only for a short time.

it is not legal to remain in the US to look for another job while on B2 status. And technically, that is your current status by default AFAIK.

[sbgamatt]

Can I use Form 1-539 to change status from TN1 to B2? If so, if I send I-539 by mail to change status, how long will it take to get the answer back? Am I legally allowed to stay while waiting for the decision? Suppose if they denied, will that have an impact on my future TN1 applicatons?

[Steven]

It's too late to send in I-539 because it takes weeks to process. In TN-1 the employer doesn't have to notify USCIS of the layoff so they don't actually know but technically it could be illegal to stay until the I-539 is approved (if it is).

Presence in a non-immigrant status counts against a stay as a visitor, and you can stay up to six months as a visitor, so it depends on when you entered in TN-1 status. Some CBP people are sticklers for this one, others don't care. If you entered less than six months ago it won't be a problem.

If it were me I would leave and re-enter if there is going to be some sort of delay in leaving. Usually cheaper anyway as I-539 costs $320. Plus you're there in person so you can explain yourself.

This "ten days" thing is mentioned in the FAM and in the regs in various places but in the law it doesn't mention anything like that, as I recall it comes from caselaw which says you have a "reasonable" amount of time to leave and USCIS seems to think that means ten days.

Frankly I wouldn't worry about it too much, just get yourself sorted out and leave, it's not as if CBP is hiding in the bushes outside with a stopwatch.

It's not legal to look for work as a visitor or on TN-1 for that matter.

[sbgamatt]

Thanks Reba and Steve,

1) When I cross back to Canada by car do I need to return the I-94 to the Canadian CBSA or should I just keep it and return it later to the US CBP when I go for a new TN1 when I get a new job in the US?

2) When I apply for a new TN-1 at the POE will they asked me when I lost my last job and when did I go back to Canada?

3) I went to Canada on Christmas last year to visit family and returned on January 6th. So for this calendar year 2009 am I technically within the 6 months period?

Thanks a lot of your comments.

[MC]

Frankly I wouldn't worry about it too much, just get yourself sorted out and leave, it's not as if CBP is hiding in the bushes outside with a stopwatch.

You know, I think they are doing just that. I saw an excerpt off of WGRZ Buffalo a few weeks back and it showed how CBP is really becoming a more visible force along the U.S./Canadian border, driving patrolled vehicles similar to the police use. Evidently, they are looking for all kinds that break the law, not just immigration laws. Their mandate is obviously immigration-based but they are catching other criminals as well and passing them onto the appropriate agencies. You just never know.

[Reba]

Thanks Reba and Steve,

1) When I cross back to Canada by car do I need to return the I-94 to the Canadian CBSA or should I just keep it and return it later to the US CBP when I go for a new TN1 when I get a new job in the US?

You need to return it as soon as you leave the US, otherwise they could nab you later under suspicion of overstaying.

2) When I apply for a new TN-1 at the POE will they asked me when I lost my last job and when did I go back to Canada?

Most likley yes, which is why you need to turn in your I-94 when you leave. IF you can even find another job. They're pretty scarce these days.

3) I went to Canada on Christmas last year to visit family and returned on January 6th. So for this calendar year 2009 am I technically within the 6 months period?

Technically yes, *but* interpretation is a bitch. The next CBP you get may count the days you were in the US from the beginning of your TN1, rather than Jan 1, or they may not.

[Steven]

You know, I think they are doing just that. I saw an excerpt off of WGRZ Buffalo a few weeks back and it showed how CBP is really becoming a more visible force along the U.S./Canadian border, driving patrolled vehicles similar to the police use.

They're doing more spot checks that is for sure, they've been checking the ferries near the BC/Washington border even if they're not actually going to BC.

They had a roadblock up before Sweetgrass last week, but I think that was to do with H1N1 as the CBSA agent said they only seemed to be stopping people with Mexican plates or plates from the southern US. Nice to know they care about people entering Canada from the US with H1N1 although I'm not sure that was the reason, they might have been looking for something else.

When I actually drove into the US, CBP searched the vehicle and they searched everyone's vehicle, I've never seen them being that thorough before.

-- Thu May 07, 2009 12:03 pm --

Thanks Reba and Steve,

1) When I cross back to Canada by car do I need to return the I-94 to the Canadian CBSA or should I just keep it and return it later to the US CBP when I go for a new TN1 when I get a new job in the US?

Like it says on the form, surrender it to a Canadian official when you leave.

2) When I apply for a new TN-1 at the POE will they asked me when I lost my last job and when did I go back to Canada?

Maybe but it's not really relevant to a new application.

3) I went to Canada on Christmas last year to visit family and returned on January 6th. So for this calendar year 2009 am I technically within the 6 months period?

Yep, it does depend on who you get with CBP as to how fussy they are about this.