Canadians Can Now File New TN Petitions With USCIS

The Department of Homeland Security announced today that it will henceforth accept new TN applications from Canadians via mail or courier to U.S. Citizenship & Immigration Services (USCIS). This is a significant change in administrative procedure from the former requirement that all new TN petitions be filed at a Port Of Entry or through Pre-Flight Inspection with U.S. Customs and Border Protection (USCBP).

TNs are Treaty-NAFTA nonimmigrant work authorizations, allowing certain Canadian and Mexican professionals to work in the United States for U.S. employers under certain conditions. TN status may be granted up to three years, and is renewable. For more on the category, click here.

This change in procedure is really good news for applicants, and may end up adding some predictability to the adjudication process. Before this announcement, applicants had no other option than to arrive at port of entry with the intention of working in the U.S., with the final say going to a line officer at U.S. Customs and Border Protection. Occasionally, disappointment for employer and employee would follow.  Now, employers have the option of petitioning for their employees in advance, thereby determining whether or not there will be any issues far ahead of actually traveling to the United States.

Further, USCIS will likely issue Requests for Evidence if there is an issue with the case, allowing the petitioner and employee an opportunity to respond in due time, rather than be turned around as this case with a border application.  While the administrative hoop of a Request for Evidence is burdensome, the process requires the agency to articulate its demands and gives a fair and non-disruptive manner to the petitioner to respond.

The cost of filing initially through USCIS will be higher, as an I-129 is required and the filing fee for this is $325. The cost of filing at the border is $50 plus $6 for an I-94. There will be cases though where the added cost will be worth the predictability that the process through USCIS brings.

With this expansion in adjudicative policy, there will be some cases where it will clearly be a strategic decision on whether to file with USCIS at a higher cost and with a lengthier adjudication process, or file at a port of entry with USCBP. USCBP is primarily an enforcement agency, while USCIS is primarily vested with responsibility for immigration benefits. This distinction in agency missions needs to be considered sometimes when choosing the best “forum” for an adjudication.

The change in policy is a result of the Beyond The Border agreement between Canada and the United States. More administrative changes in border practice are forthcoming.