TN ending: should I change-status>B2 or just leave/re-enter

<TIME SENSITIVE Q, for whatever that's worth>

I'm Canadian and my employment at my TN sponsor employer is ending in 2 weeks. I would ideally like to stay here for at least a few more months (my lease, for instance, doesn't expire for 8 months, and I need at least a few months to tie up loose ends / sublet my apt, etc).

Please correct me if my info is not accurate, but I am under the impression that I can do 1 of 2 things, and I am posting to ask about the merits / pros-cons of each:

1) My employer says that they will help me file a change-of-status form to B-2...they tell me that it's pretty straight-forward (although I have read on this board some horror stories about such requests being denied.)

2) Alternatively, can't I just leave / re-enter WITHOUT a B2 (or any type of visa for that matter)? i.e. In the days after my last day of work, go home to Canada and then re-enter, I suppose as a "tourist"? I'm sure the CBP officer would ask about my status, to which I'd responde truthfully: my TN employment ended abruptly, and I am coming back in to tie up loose ends / sublet my apartment, etc.

So my first Q: do I understand my 2 options correctly?

Second Q: is one more advisable than the other?

It seems to me that the biggest drawback to the B-2 is that it could be denied, which would obviously be a worst-case-scenario, since I'm told that the denial is "retroactively" effective from the day your TN ended, meaning that you'd technically have been out of status for the period of time in between. I am leaning toward the leave/re-enter option (unless I'm convinced otherwise), because to me it seems preferable to not be "in the system"...I stress that I am NOT planning on doing anything improper, but I've had my share of dealings with CBP / USCIS before, and as most of you know: they are often stubborn idiots. If I were on a B-2, I figure that it puts me in the system / on their radar screen...whereas if I just leave and then the re-admit me as a tourist(?), I'm not on any type of official visa status, which seems like a preferable option to me.

Anyone been in my shoes, or tried one of the above 2 options and have anything to share?

a) Denial of a mail-in B-2 petition denied (one mails an I-539 on the last day of work) is almost unheard of in the 10 years I've closely followed this issue, so I don't know what horror stories you are referring to, and (b) one is typically already back in canada or has found a new TN job before such a denial would ever come. One file the B-2 to remain in status, without really caring about approval or denial.

What is VERY OFTEN denied is a border request for entry in B-2 status immediately after losing your TN -- and this denial is correct.

The primary requisite for admission in B-2 is a foreign residence, which is unlikley in the case of someone who has lived and worked in US for some time. One would be considered very lucky to be admitted without first re-establishing Cdn residence for several weeks.

No, the proper way is to file I-539 on last day of work, requesting upto 6 months to wrap up US affairs, remain in US until you are absolutely sure that you are not going to find another TN job, and then leave US with the intention of not returning until resience is established (lease, phone, utilities, etc). Only after tthat time should you even expect to hear back from CIS whether your petition was approved or denied.

No, the proper way is to file I-539 on last day of work, requesting upto 6 months to wrap up US affairs, remain in US until you are absolutely sure that you are not going to find another TN job, and then leave US with the intention of not returning until resience is established (lease, phone, utilities, etc). Only after tthat time should you even expect to hear back from CIS whether your petition was approved or denied.

In the case you file I-539 and your I-94 expires while you wait for an answer, does this create a problem if your B2 is denied? How does this work?

No, you will have been B-2 pending until the denial, and the B2 denial will instruct you on how many days you have to leave. Only after this date are you out of status.

But, why the worry about B2 denial? It almost never happens, and I-539s take severral monthsto be processed, before which time you will either have left US, or found another TN job.

You are filing only to remain in status temporarily while you decide what to do, not to take up long-term B2 status

Thanks Agnelson!
Yes, I didn't aks the question properly, I just wanted to make sure that B-2 pending makes it legal to stay even in the case I-94 expires, no matter denial or not. But you answered it, and you are great in explaining as always!

-- Thu Sep 30, 2010 12:22 am --

One more question regarding this kind of situation.
Lets say you lost the job while on TN, applied for B-2 and during the waiting process got another job (or your TD spouse got a job while still in US during the B-2 pending).
If you go to the border to apply for new TN and you are denied new TN, do you have to leave US immediately or they would let you to stay, since you are on B-2 pending and still having residence in US?
Thanks!

If you go to border and are denied a TN, then you likely will not be allowed in. Your B-2 pending status ends the moment you cross theborder for any reason. You would have to try to enter as a 'regular" B-2, which would be unlikley since you have no home in Canada. So one needs to make sure that their new TN petition is iron-clad.

Again, the I-539 you send in to get B2 is only valid and only protects you while physically remaining in US.

By the way, your "TD spouse" would also have to submit B-2 petition at same time as the TN lay-off.