TN after 9 yrs in US

A

akhu0

Registered Users (C)
Hi All,

Been in US for 9yrs, with the same company for past 7yrs on either H1b or TN. My H1b expires this 1st Aug '09. My employer applied I129 for TN status and was responded with RFE questioning intent of being "Temporary" in US (response needed before 10th Aug '09).

Question1: Should I approach the border or let my employer lawyers handle it. Question2: If I approach the border/POE, would they know about my on-going employer filed I129, or are they independent to each other.

Appreciate any ideas I could use to satisfy the officer at POE on the temporary intent (apart from mentioning it in the employment letter saying 1 or 3 yrs max).

Thanks in advance for your help!
 
akhu0 said:
Hi All,

Been in US for 9yrs, with the same company for past 7yrs on either H1b or TN. My H1b expires this 1st Aug '09. My employer applied I129 for TN status and was responded with RFE questioning intent of being "Temporary" in US (response needed before 10th Aug '09).

Question1: Should I approach the border or let my employer lawyers handle it. Question2: If I approach the border/POE, would they know about my on-going employer filed I129, or are they independent to each other.

Appreciate any ideas I could use to satisfy the officer at POE on the temporary intent (apart from mentioning it in the employment letter saying 1 or 3 yrs max).

Thanks in advance for your help!
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Ah, more "house cleaning" by USDHS....
At this point I would let the lawyers handle the RFE and stay away from the border.
You have nothing to gain running to the border if you get denied there you have zero recourse and are separated from all your "stuff".
What used to work for me was just saying something similiar to "the employer wishes to keep me on when they don't want me anymore I will return to Canada".
I'm not sure what the lawyers would say but that line got a nod from the old USCIS officers every time.

Which US/Can border area would you be closest to?
 
Thnx webtiger. So if there is no recourse and POE vs I129 are seperate/independent processors, there should be NO risk approaching the border. This way I got two avenues to get TN. (i.e if POE fails I can fall back to the I129 process letting the lawyers handle). I was planning to approach the Laredo border.
 
akhu0 said:
Thnx webtiger. So if there is no recourse and POE vs I129 are seperate/independent processors, there should be NO risk approaching the border. This way I got two avenues to get TN. (i.e if POE fails I can fall back to the I129 process letting the lawyers handle). I was planning to approach the Laredo border.
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Let the lawyers handle the RFE FIRST if that fails then you may be able to still go to the border although the refusal is likely in the system and viewable by officers at any POE.
Like I said previously, if you go to the border and get refused you're out, period.
Laredo, TX is on the Mexican border how do you feel about being stuck in Mexico needing to get back to Canada without going through the US?
 
I had believed they will allow me back even if refused at POE since the H1b is still valid and also for the reason I am a canadian citizen (ofcourse they have full power to deny entry if needed...worst case but not because TN was declined).

Just to be clear on what you said about the I129, until approved or denial the POE will NOT know the about the I129 application, true?
 
for the reason I am a canadian citizen
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Being Cdn does not grant you any special favours. Do not fall under the misconception that "Cdns can enter US for 6 months" fallacy.

Cdns can enter US for upto six months -- as tourists, only if they continuously maintain a verifiable foreign residence .

You don't, and the officers know this. To get back into US you would need a valid work status (whuch indeed you have), otherwiuse you would need to stay in canad for several weeks re-establishing a foreign residence, before re-entering as a tourist.
 
Remember that your H1 expires on Aug 1. You cannot work past that date until you actailly get a TN. Many TNers get border TN after failed I-129, so an RFE shouldn't be aproblem..

I would be doing this now rather than waiting until H1 expires
 
Thank you all for your help. I plan to approach the POE before my H1b expires and hope for the best. if that attempt fails let the lawyers handle the I129 RFE. Will update this posts on the results. Should I go for 1 or 3yrs at the POE?
 
When you go to the store only needing a cup of milk, do you go to the store, buy a quart, and pour the rest out? Get 3 years.
 
akhu0 said:
I plan to approach the POE before my H1b expires and hope for the best. if that attempt fails let the lawyers handle the I129 RFE.
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Keep in mind, when you approach the border you are asking to enter the US in a specific status. If you request to enter the US in TN status and you are denied entry, you can't simply pull out your H1B from you back pocket and claim you changed your mind and want to enter in H1b status now.... The border guard will go balistic on you.

The correct procedure is you will be processed as a denied TN, rejected from entry in to the US at that time, and then you will need to leave the border and come back again, and claim H1b status.
 
CG makes a very good point. While it is quite legal to request entry in one status and, if denied for a technicality, enter on another to which you are entitled to, the mindset of the POE officer should be taken into consideration, especially if you are denied a TN on some flimsy or even improper excuse, as has often been the case of late.

If you sense hostility, simply retreat, and enter US on your H1 at another time or place (note: going to another POE to enter on an existing status is not the same as POE-shopping, which is frowned upon).

If you have no other alternative you can ask for entry on another status if rejected (people do this all the time), but dealing with a "balistic" POE is not the best plan.
 
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Good point curiousGeorge. I will note that. Thanks Nelsona for your response. I asked the question just incase they do more scrutiny on the 3yrs vs the 1yr TN. Looks like they dont based on your answer.

My lawyers are debating whether to withdraw my change of status petition (I129) before I try the border approach or wait until after I have processed at the border and then withdraw the petition. Any suggestions?
 
It is pointless to withdraw it now. Go to the border, get new TN and then withdraw the petition, after the border TN is recieved (you always need to do this). There is no harm in having an I-129 in process while going to the border; it is done all the time.

But, make sure you do cancel I-129 immediately after you get TN, or the potentil denial of I-129 will take precedence.
 
Please keep us posted. I am very interested in this case. I wonder why the lawyer does not want to deal with the RFE. What could've triggered this RFE? The wordings of the petition?! This is a bad sign if CIS wants to harrass TNers. How could the employer prove the job is of a temporary nature?!!!
 
Interesting fact my lawyer conveyed to me today was that the I129 automatically cancels when I reenter applying TN through POE (no matter what the result is). Not sure if thats 100% accurate. Will update when I have the results. The temporary intent is shown in the offer letter (part of the TN package) with a max length of employment not exceeding 3 yrs.
 
Interesting fact my lawyer conveyed to me today was that the I129 automatically cancels when I reenter applying TN through POE
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No, this is not accurate. I-539s cancel 'automatically' when one departs US (even then I would formally cancel if I got my TD, H4 etc).

I-129s do not. Your lawyers are under the misconcetion that your leaving US abandons I-129. You are not the petitioner for I-129, your firm is. Thus no action you take has any impact on I-129. So, neither interesting nor factual.

So, when you return form the border with new TN, you MUST cancel the I-129, or you risk subsequent denial.
 
My concern is CIS might start also RFEing TN petitions if there is an approved/pending I-140. By the same token, if the employer is doing I-140 how could the job be of temporary nature?!!!

I was shocked when I saw this thread! RFE to prove the temporary nature of the job?!!!!!
 
TN APPROVED at POE today. No questions asked on temporary intend except the standard ones (what is the job/responsibility, show original degree, who is your employer etc). I truly appreciate everyone's help in motivating me.
 
Now don't forget to formally withdraw your I-129, as its impending denial (remember the RFE?) will take precedence over your approval, under the last action principle.

Don't listen to your lawyer who incorrectly thinks that the I-129 is dead -- it is NOT, until you cancel it by letter.
 
Excellent

I was following this case very closely by reading all the msgs i really appreciate Nelsona for giving right, straight forward info. and advice.
We all should thank Nelsona for selfless advice and info.
 
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