Transfer my daughter TD to my wife's TN

[dcadenasa]

Hi there,

My employer changed my status from TN to H1B and the I-797A (Approval notice) was issued on October 25th 2011.
I understand my daugther's TD (under my TN) is not valid any more. Unfortunately, I have not updated her status yet.

My wife is under a TN and I am thinking of switching my daugther's TD under my wife's TN.
My questions are:

1. I have not stamped my passport with the H1B yet. Does that mean that both my TN and my daughter's TD are still valid?
2. If I want to switch my daughter's TD to my wife's TN, is there any timeframe to do so?
3. Is it better to have my daughter re-enter the US or filling the transfer by mail?

Thank you,

[nelsona]

Just for knowledge, the correct thing to do would be to have filed I-539 for your daughter at same time as your I-129 for H1, then she would now have H4, with same length as your H1. Why aren't people filing I-539 with their I-129's anymore? Most companies used to do this without even question! Or did you forget to ask?

To answer your questions:

1. No. You are in H1 status since October 25th. That is why they issued you an I-94 on your I-797: that is your current I-94. Make sure the firm has an I-9 on file with this new status.

2. Your daughter is in questionable status so you need to go to the border and either get her a TD based on your wife, or an H4 based on you (I would abviously choose the one with the latest expiry date, or the person who has the time to go to the border first). Now, there may be some wiggle room in saying that as long as she has any parent with a TN, then her TD status is valid, but that's up to a lawyer to determine. It would be cheaper for you to just go to the border and get new TD/H4, than to find this out. I do know that if you switch between TNs your dependant's TD is still good, but that would be because YOU are the same TN person 'sponsoring' the TD. In this case you are switching 'sponsor'.

3. As I said, if she is currently out of status, she can't change it by mail, so I would be planning a trip to border within the next 2 weeks. I would not risk the possibility that she be out of status for 6 months (ie. April 25th).

[TheRealCanadian]

I do know that if you switch between TNs your dependant's TD is still good, but that would be because YOU are the same TN person 'sponsoring' the TD. In this case you are switching 'sponsor'.

TDs are not "sponsored" - the alien beneficiary petitions for themselves. Because of this, the TD status remains valid.

[nelsona]

That is why I used "sponsored". Indeed TD is self-petitioned by the beneficiary. However, the I-539 requires the NAME of the petitioner/applicant upon which you are basing your petition if it is family-based, and the procedure at the border mimics this by putting the name of the one TN parent on the back. It doesn't ask for the specifics of the TN, but it does require the existence of the TN for that parent.

If the named person is no longer in the primary status being sought, I would say that it would not be obvious that the TD is still valid.


On what basis is the child's TD still viable? The only parent of record is not TN.

[TheRealCanadian]

However, the I-539 requires the NAME of the petitioner/applicant upon which you are basing your petition if it is family-based, and the procedure at the border mimics this by putting the name of the one TN parent on the back. It doesn't ask for the specifics of the TN, but it does require the existence of the TN for that parent.

They require it to make things easier in terms of evidence, but it doesn't have legal effect. There's not a single bit of statute, regulation or memorandum that suggests that in the case of multiple TN parents (or H-4, L-2, etc) that a child's dependent status is based on the status of whichever individual was used as the basis of the initial petition.

On what basis is the child's TD still viable? The only parent of record is not TN.

There's no concept of a "parent of record" in the law. The child remains the dependent of a TN alien, therefore TD status remains valid.

[nelsona]

There's not a single bit of statute, regulation or memorandum... That is a rather sweeping "no it's not" statement, which I could counter with "there is nothing that specifies that it is permitted, either", thus the need for some higher authority that you or I.

So, what would you, TRC, suggest our poster do? You haven't said.

I suggested see a lawyer or go to the border, preferably within the month.

[TheRealCanadian]

There's not a single bit of statute, regulation or memorandum... That is a rather sweeping "no it's not" statement, which I could counter with "there is nothing that specifies that it is permitted, either", thus the need for some higher authority that you or I.

Not really - whatever is not prohibited by the law is permitted, wouldn't you say?

Not only is there nothing in the law to suggest linkage between a dependent status and the primary, I've never in 15 years seen or heard of an RFE asking about whether a specific alien maintained status so that the dependents could be considered in status. Admittedly, both parents being in the same non-immigrant employment status is a bit of an unusual case, but I figured at least one RFE would come across. Nope.

I agree, if they are close to the border it might not hurt for peace of mind. But I wouldn't go rushing out for an expensive trip or consultation, especially if the children are under 18.

[nelsona]

but I figured at least one RFE would come across.

Wow, I didn't realize you had access to all RFE's. So, you've added that to your sweep? I guess that settles that.

Why would an RFE be required in any event, the petitioner typically has to submit proof of the primary's status. No need to RFE that. And border petitions aren't RFE'd

nothing in the law to suggest linkage between a dependent status and the primary

I don't even know where to start on that one. So a TD can be issued to the child of an H1? That a a TD remains TD if the primary, dies, loses his job, gets deported? What? I'm pretty sure there is "linkage".

...especially if the children are under 18.
Yeah, the old they won't kick out my kid defense. Why do we bother getting our families dependant status in the first place?

[TheRealCanadian]

Wow, I didn't realize you had access to all RFE's. So, you've added that to your sweep? I guess that settles that.

You're really being unreasonable here. You are making a claim about the immigration law that has no supporting evidence whatsoever, and you're challenging me to provide proof? Really?

Why would an RFE be required in any event, the petitioner typically has to submit proof of the primary's status. No need to RFE that. And border petitions aren't RFE'd

In your rush you miss the point; RFEs are regularly raised to prove valid status at COS and I-485 time. If what you say was true, you'd see RFEs if the parents were on different status based on annotations in the I-94 for the dependent children to prove valid status. You'd see an annotation in the I-485 adjudicators manual (which I do have a copy of) for them to check for this situation. Nothing of this sort exists.

I don't even know where to start on that one. So a TD can be issued to the child of an H1? That a a TD remains TD if the primary, dies, loses his job, gets deported? What? I'm pretty sure there is "linkage".

You're being deliberately obtuse. You know what I mean - if the dependent qualifies for his or her status via two parents instead of one, there is no evidence of linkage of status to a specific parent anywhere in the law. If there is, the obligation is on you to point it out, not me.

Yeah, the old they won't kick out my kid defense. Why do we bother getting our families dependant status in the first place?

Geez, this is really sad. Reducto ad absurdum? Really.

Stop trolling and tell me what the consequences are if you are right and I am wrong. There's no illegal presence because the children are under 18 and there's an unexpired I-94 even if they aren't. Worst case a COS or I-485 gets denied and they have to leave and re-enter in H-4 status. There's really no practical consequences.

Instead, you're suggesting that they spend what could be hundreds of dollars or more based on an unjustified assertion of your own. Are you willing to pay for their consult? Are you willing to pay for their border trip? It's easy to ask other people to spend their money based on unproven feelings.

[nelsona]

Tough day at the office Luke, or has someone hi-jacked your account?

Question was asked, I said my gut tells me she's not in status, but I'm not sure, and you simply say "no way, no how, never" by asserting the absence of the positive, but I'm the one left needing to prove that absence? I already pointed out 2 locations where linkage is made to the ONE parent (I-539, and I-94 notation, which you simply dismiss because your experience -- which I do recognize is quite vast -- didn't come across this).

Look what I suggested:
Go to the border or see a lawyer, you might have a problem.
Look what you suggested:
If the child is over 18, you might want to go to the border, you might have a problem.
Both reasonable, and unassailable, no?


Why would you say I'm trolling?

You haven't posted on here in about 6 months (again, has someone stolen your account Luke?) until last week. How can you say I'm trolling on a board that I've faithfully supported almost as long as you have? You know me better than that, as I do you.

And there are ways of getting leagal advice tha tare not costly. Since this is such a cut-and-dried scenario, it should take 10 minutes to resolve. Or are you saying this would be a difficult situation for a lawyer to nail down. Hmmm.

Your right, best leave well enough alone, and 'regularize' kids status next time its convenient. Forget what I said. I've got to go trolling somewhere else!

[TheRealCanadian]

Tough day at the office Luke, or has someone hi-jacked your account?

You are absolutely right, Nelson. My comments really were unacceptable. I am sorry.