Nonimmigrants in the United States applying for Visas in Canada or Mexico

Nonimmigrants (temporary visa holders) in the U.S. often consider the possibility of traveling to Canada or Mexico to apply for Visas. This is known as “Third Country National” processing. A Third Country National (or “TCN”) is a term that describes a nonimmigrant who applies for a visa in a country that is not his or her country of origin in order to enter a country that is also not their country of origin. For example, a native and citizen of India who entered the U.S. as a B2 tourist and then applied for and received a change of status to H-1B may wish to travel to Canada (or Mexico) to apply for an H-1B visa (and then re-enter the U.S. in H-1B status. While many nonimmigrants who utilize the TCN process and apply for visas are approved, there are several important factors that should be taken into consideration before a decision is taken to do so:

• If you are Out of Status, have Overstayed your Visa, or have Violated the Terms and Conditions of your Visa, you may not be eligible for TCN Processing. Whether you have overstayed your current visa or are out of status may be obvious, since, in most cases, the date on your I-94 will control and you will know the exact date on which your current status expires. However, in some cases, it might not be so obvious and you may find yourself in a predicament at the border. For instance, if you are an F-1 or J-1 visa holder admitted for “D/S” (Duration of Status), you will be in status as long as you are still in school (F-1) or pursuing your J-1 program. If you attempt TCN processing and the officer discovers – for example – that you are no longer in school, this may be deemed a violation of your F-1 status and your application for a visa will be denied. Another example would be where it is discovered that a TCN applicant has worked in the U.S. without employment authorization (B2, F-1, etc.) or was authorized to work in the U.S. for a specific employer, but has worked for a different employer for whom the applicant was not authorized to work under the terms of the subject visa (E-2, H-1B, L-1, P-1, etc.).
• An Approved application for a Change of Status (COS) in the U.S. does not automatically entitle the applicant to apply for and receive a visa in the same category. While most TCN applications of this type are probably approved, it should be understood that COS applications are adjudicated (decided) by USCIS and applications for visas are adjudicated by the U.S. Department of State (DOS). While these are both U.S. administrative agencies, it should be noted that they have different organizational structures and procedural mandates which are not always completely in agreement with each other. At times, they may compete for influence and control over certain aspects of U.S. immigration law and in this way, officers of DOS may completely disagree with the decision of a USCIS officer on an application. For instance, it is widely accepted that the DOS has primary authority over E visa applications (although the law does permit applicants to file for a COS to E visa status with USCIS). The result, the DOS officer may deny the TCN’s application for a visa even though USCIS approved the COS application while the applicant was in the U.S. This may require the applicant to return to his or her country of origin.
• IF you attempt TCN processing and your visa application is DENIED, you may not be able to re-enter the U.S. in the same visa category, even though you may be in possesion of a valid admission stamp or paper form I-94. In short, if you are denied admission, this means that you will have to return to your country of origin and re-apply for a visa. Your attempts to obtain an approval there might be complicated by the fact that your TCN processing attempt was denied.
• Some U.S. Embassies and Consulates will not accept Visa Applications from certain TCN applicants who are not residents of their consular districts. For instance, certain embassies and consulates will routinely reject applications for E visas that are filed by TCNs. Applicants need to carefully research their options and plan accordingly.
• Nationals of Certain Countries are Not Eligible for TCN Processing. The U.S. Secretary of State has designated certain countries as “State Sponsors of Terrorism.” The countries currently on this list are: Cuba, Iran, Sudan, and Syria. Applications from nationals of these countries will not be accepted by the embassies and consulates for TCN processing.
  
  These limitations reflect the general historical preferece of the U.S. Department of State to receive and process visa applications in an applicant’s country of origin. While TCN processing may appear to be an attractive and convenient alternative for certain nationals who wish to avoid the time and expense of returning to their country of origin, approval is never guaranteed and the process is not without risks.

If you have questions about this article or if you need assistance with your TCN application, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.