CBP Incorrectly Requiring I-797 After TN Visa Worker’s International Travel
I recently received a question from a Canadian citizen working in the US on TN visa status. She was re-entering the US after an international trip, and the USCBP officer asked where her I-797 approval notice was, which she did not have. The CBP officer advised that she needed it next time she traveled.
This is, unfortunately, a common issue for TN visa workers when they are returning to the US following international travel. It is a long standing issue pre-dating the Trump administration. Some CBP officers at US international airports seem not aware of the nuances of the TN visa classification. They assume that like a majority of non-immigrant workers, TN Visa workers must have an I-797 approval notice, which is the standard work permit approval document issued by USCIS. But that is not the case for all TN visa workers since they can obtain TN approvals not just at USCIS, but also at the border or the US embassy.
For example, to work in the US under the TN visa classification, Mexican citizens will normally first file a DS-160 application at the US Embassy in Mexico to obtain a TN visa stamp in their passport. This visa stamp is the only US immigration document they need in order to travel and seek entry to the US. When they enter the U.S., then CBP issues an I-94 record that provides proof of their TN status and work authorization. USCIS is not involved in this process. No I-129 petition is required to be filed beforehand with USCIS, and so no I-797 document is issued. (The requirement for Mexican citizens to file an I-129 petition for a TN was eliminated in 2004. See CBP Inspector’s Field Manual, pg. 106.)
Like Mexican citizens, Canadian citizens do not need to file an I-129 petition with USCIS in order to obtain TN visa status (see CBP Inspector’s Field Manual, pg. 111). In fact, one of the benefits of NAFTA / USMCA for TN visa workers was that the agreement prohibited parties from requiring the filing of this sort of petition prior to TN issuance. See USMCA Annex 16-A (D) (2). Canadian citizens get one additional benefit: unlike Mexican citizens, Canadians are also exempt from the visa stamp requirement. As such, they can apply for TN work authorization directly at the US port-of-entry. If approved, CBP issues an I-94 record, which an individual may use for travel to the U.S. Again USCIS is not involved in the process, no prior I-129 petition filing is required, and so no I-797 document is received by the TN visa worker.
Where does USCIS and the I-129 petition / I-797 notice become involved in the TN visa process? If a Canadian or Mexican citizen is in the U.S., and wants to extend or change to TN visa status, or change TN employers by mail, then their employer may file an I-129 petition with USCIS for that purpose. (A Canadian citizen outside of the U.S. may also file an I-129 TN petition with USCIS for approval prior to seeking entry to the U.S.) It is only in these circumstances that a TN visa worker will ever have an I-797 approval notice evidencing their TN visa status.
