With headlines about large corporate layoffs dominating the news cycle in 2023, it is important for workers on employment visas to be mindful of the immigration regulations that apply to their status in the United States. This blog post will examine the USCIS rules that apply when a worker is in the United States on a TN visa and either loses their job or voluntarily quits.
TN Visas: An Overview
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships between the United States, Canada, and Mexico. One of the primary perks of NAFTA (now preserved in the United States-Mexico-Canada Agreement) was the creation of the TN visa category.
A “TN” visa stands for Trade National Visa. This visa is a non-immigrant classification that permits qualified American, Canadian, and Mexican citizens to seek temporary entry into the other countries to engage in business activities at a professional level. TN visas are restricted to approximately 63 professions, and qualifying professionals typically hold educational credentials that are specific to the profession or occupation.
TN visas are valid for a period between 1 - 3 years, and can be renewed numerous times. Unlike other visa types, there are no caps on the number of visas issued. This, combined with its relative affordability and ability to be issued quickly, makes TN visas an extremely popular choice for Americans, Canadians, and Mexicans.
The End of Employment
The TN visa is tied to employment with the sponsoring employer. When the TN visa holder ends their employment with the sponsoring employer (e.g. due to layoffs, voluntarily quitting, etc.), the visa status ends as well.
TN visas are non-immigrant visas, meaning the intent of the holder must be temporary. Practically speaking, this means that a worker on a TN visa is expected to return to their home country when the visa expires or is terminated. TN visas are issued for a finite period of time, and the U.S. government expects that TN holders will remain mindful of expiration dates and the conditions of their visa, and will plan accordingly.
There are two grace periods that are attached to TN visas, depending on the circumstances.
When a TN visa status expires, and it is not extended by the employer, the U.S. government grants a grace period of 10 days from the last day of the visa status. This means that the individual who held TN status has 10 days to depart the United States. This grace period sounds short, but is a reflection of the fact that the TN visa holder is assumed to know the relevant conditions and expiration dates attached to the visa status. The TN visa is a temporary status, and visa holders are expected to plan their exit strategies accordingly.
When an individual’s employment ends before the visa actually expires (e.g. through lay-offs, voluntarily quitting, etc), the grace period is longer. In this situation, regulations permit a grace period following the end of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter. This means that the individual can maintain their status in the U.S. for up to 60 days if they had at least 60 days remaining on their visa before it expired. If the visa was due to expire in less than 60 days, that would be the number of days they may lawfully remain in the U.S.
Extending or Changing Status
If you find yourself in one of the above situations, you may be able to extend or change your status depending on the circumstances.
If your visa expires and you find yourself subject to the 10 day grace period rule, you must leave the United States. However, you may try to re-enter the United States under visitor status in order to tie up any loose ends. Whether you will be admitted for this purpose remains up to the discretion of the border guard.
If your employment ends before the visa expires, you have 60 days to file for a change of employer or a change of status. If you find a new job that qualifies for a TN visa, and the new employer is willing to sponsor you under this visa status, you do not need to leave the United States and can file your change of employer request via mail. In this circumstance, you may not begin working for the new employer until the application is approved. Alternatively, you may leave the country and re-enter at a port of entry to re-apply for a new TN visa under the new sponsoring employer.
In addition, individuals subject to the 60 day grace period may file for a change of status with USCIS by mail. In this circumstance, they would be requesting a change of status to visitor status. Whether this request is granted is a matter of discretion. While the request is being adjudicated, they are put into an authorized period of stay and may remain in the United States pending a decision.
Did you know that Sisu Legal offers a free Canada & U.S. TN Visa Guide?
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