Family still on td when I switched to H1b in October 2022

TNRider

TNRider

New Member
Hi, please help me understand if there is a way to change the status of my family from td to h4. I got H1b and status started October 2022. My family had valid td till 2025 Jan. They are on td from same company I got H1b. Is it too late to go to border and change status. Was my family out of status, once I moved to H1b. We all didn't leave the country since 2022 October
 
From what I know, transitioning from TD to H4 is definitely doable, especially if you're all staying in the country. Your family's TD status would technically be linked to your previous visa status, which was probably the H1B of the primary applicant, right? So, once you switched to H1B, their TD status kinda lost its footing. But don't worry, you guys didn't slip into "out of status" territory since you didn't leave the country after you switched. Going to the border to adjust status might be an option, but I'd recommend consulting with an immigration attorney just to be sure you're covering all your bases.
 
They are out of status and deportable since you changed status, but they have not accrued any "unlawful presence" since the date on their I-94 has not yet passed.

They probably can't do Change of Status inside the US since they are out of status; late Change of Status applications are not accepted unless there is good cause for being late.

If they leave the US and re-enter on H4 status, that could work. (If they are not Canadian citizens they would need to go to the consulate to get an H4 visa.) They will not trigger a ban upon leaving the US, since they have not accrued unlawful presence. However, not having a ban does not guarantee that they will be allowed to enter.
 
Thanks a lot guys. This is helpful. I will try my luck with border agents. Hopefully this can work out. Does TN visa automatically end, when I switch to H1b status in USA? If TN and H1b are for the same employer?
 
TN and H1b and every other non-immigrant status are different, and one can only hold one at a time, regardless of the sponsor, so your TN and the TDs ended the moment you got H1b.
It would have been nice if your firm had taken care of all of you. Poor treatment I would say,
 
nelsona said:
TN and H1b and every other non-immigrant status are different, and one can only hold one at a time, regardless of the sponsor, so your TN and the TDs ended the moment you got H1b.
It would have been nice if your firm had taken care of all of you. Poor treatment I would say,
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So, any way I can try my luck at the border to change the status for my family to h4 . Also In future, would there be big issue of my family being out of status for long time?
 
TNRider said:
So, any way I can try my luck at the border to change the status for my family to h4 . Also In future, would there be big issue of my family being out of status for long time?
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You could try that. Be mindful that the border agent could ask about your family's "current status" - and not sure how that will end up.
 
As newacct correctly pointed out, there will be no issue at the border, since they will have left US by default, and have not amassed any unlawful presence.

You have no other alternative at this point. Thank your firm's lawyers for that.
 
Thanks Nelsona. I am just worried about CPB not letting my family enter USA due to being out of status. In case of CPB officer agreeing to changing the status of my family members, will this be from October 2022 date or the current date when they will cross the border. I am worried about the gap of this out of status for family members. I am worried in future this will cause green card application issues.
I am also considering using nunc pro tunc with premium processing for change of status, citing it was my or employer failure to file change of status in the first place. This will be very costly but less risk than family getting detained at the border.
 
You have little choice. Their TDs will be effective the date you cross, not back-dated.
As has been said a couple of times, they have not incurred unlawful presence/

While I said your employer *could* have helped you, you are your dependents sponsor, not your employer. it was your responsibility to keep them in status. I do not believe your case would be accepted, and there is no premium processing for I-539.

Just go to the border. You have a TN and they are your dependents, have committed no illegal act, and are requesting entry into US as TDs, Plain and simple.
 
nelsona said:
You have little choice. Their TDs will be effective the date you cross, not back-dated.
As has been said a couple of times, they have not incurred unlawful presence/

While I said your employer *could* have helped you, you are your dependents sponsor, not your employer. it was your responsibility to keep them in status. I do not believe your case would be accepted, and there is no premium processing for I-539.

Just go to the border. You have a TN and they are your dependents, have committed no illegal act, and are requesting entry into US as TDs, Plain and simple.
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Thanks nelsona. Just to confirm. I am on H1b since october 2022. They are on TD.
 
Thanks Nelsona for the help . My family got visa stamped and status changed successfully at peace bridge Buffalo border. The officers asked few questions and I was honest about missing out on changing the status etc. I got to the border at midnight so was worried that officer might ask me to come in morning on a business day.
 
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