Acquisition/merger impact on TN and GC - Need advice

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My company is getting acquired by another company. At this point, they are not telling me if the new merged company is a successor-in-interest. All they tell us is the newly merged company will give us offers to join it (sounds like a new entity and not a SII).
I am currently on TN and my PERM has just got approved. The acquisition can become effective as early as January 2016. Company's lawyer says let's go ahead with applying for concurrent I-140/I-485. I am not comfortable with that and here is my analysis of the worst case scenarios and the risks involved if I apply for 485:

1. The merger goes through in Jan 2016 and I don't get an offer from the newly merged company. Since I've been on 485 for less than 6 months, I don't satisfy AC21 and I no longer qualify for a new TN. Meaning I have to go back to Canada and not being able to get a new job in the US for a log time.

2. The merger goes through in Jan '16 and I get an offer from the newly merged company, however, the new company is not a successor in interest. Then they will need to get me a new TN and all my GC stuff has to start from scratch. However, for the same reasons as in 1, I won't qualify for a TN. So I get screwed.

I am thinking the best and the safest way to go is: just do the I-140 at this point and do the I-485 after at least more details of the acquisition/merger is announced with regards to successor-in-interest.
 
1. Just so you know, when you file I-148/I-140, you should (I would say MUST) file for I-131 (AP) and I-765 (EAD) at the same time. You status and work authorization then become adjutee with EAD, no longer TN. This is so until your I-485 is denied, it is not based on you losing your job. You can then use AC21 after your I-485 is pending for 6 months, even if out of work, you just wouldn't fall under the protection of AC21 until 180 days. You would be using your EAD to get a new job. The only caveat is that if the new firm cancels (actually cancels) your I-140 before the 180 days.
Personally, I would be applying TODAY for I-140/I-485/I-131/I-176. Hopefully your lawyer has scheduled your medical in the next few days.

2. You will be on EAD by then. You simply present your EAD.

I personally would not wait. Nothing in the scenarios you present makes it "better" to still be on TN. And, who knows, you probably will get GC before then.


As to the effects of the merger, I doubt that your process dies with the merger. Your current firm hasd 100's of arrngements in place that are advantageous to the new firm; I'm quite sure yourfirm's clients, suppliers, partners are relying on the fact that the new firm is taking over all the rights and responsibilities of the old, including your immigration process (which, by the way, is not dependant on your being actively employed at that time.

You would not be wrong however in submitting I-140 and waiting to see thje lay of the land. Any future employer could at least use the the priority date of your PERM to kick-start the process again.
 
Thanks nelsona for the reply. I have some new questions and there has also been some new developments ever since I posted this:

1. I have no priority date concerns as I am in EB2 and I was not born in India or China. So the PD problem is out of the equation for me.
2. Still not clear to me what happens if I get laid off during the first 6 months of 485. The lawyer says I can still use AC21. Is that true?
3. AC21 or no AC21, I find it easier to get a new job on TN. Don't I need a new sponsor or a similar job if I get laid off after filing 485? (The economy is not good and finding a similar perm job is really tough these days with all the mergers and acquisitions in the hi tech. Most jobs in my field are contract jobs and they prefer TN and won't sponsor for GC).
4. The company lawyer now says he won't even file 140 because he does not recommend crossing the border after 140 is filed. The same old nonsense we've been hearing for years! In addition, he says he won't file 485 until 60 days after crossing the border on TN (this is news to me).
5. I have an upcoming trip to Ottawa in October which is a must. There is no getting away with that!
6. Let's keep in mind the company lawyer just wants to make money off my GC before the merger closes. So him pushing me to start the process is suspicious. He doesn't give a rat's tail if I get screwed. He doesn't represent me. He represents my employer.
 
2. Once you file I-485, your status, if yoiu have no other valid one, is automatically "adjustee", so if you were laid off (before or after 180 days) you still are legal in US. If you applied for EAD you can and should use EAD to work -- anywhere. It's not the lay-off you need to worry about, it is the cancellation of your I-140. Before 180 days, cancelling the I-140 kills your GC process (one the NOID is issued). After 180 days, the cancellation has no effect on you, if you ahve another similar job. So, again, its not the layoff you need to worry about, it is the formal cancellation of your I-140.
3. Agreed.
4. If he is not going to file I-140, whay are we discussing? He is basically saying you can't get GC from TN. The 60 day (some say 90) it to avoid the appearance of fraudulent entry. You entered knowing full well you were going to file I-485. It's a valid point, but is never enforced. Again, for Cdns it is almost impossible to stick to this. Think of it: you would need to stay 60 days in US, then file I-485 etc, and then wait 3-4 months in US to get EAD/AP. How often have you been "confined" for 5 months? as to the travelling with I-140 submitted, he's flat wrong as you know, you can show him the memos. It's the I-485 (without I-131 AP approved) that prevents travelling.
5. If that is the case, then filing I-485 now is not wise, becauser there is good liklihood that your I-131 would not be approved before leaving, so your I-485 would be considered abandonned, your TN would be dead and you would be denied entry , and would need to use consular processing and stay outside US. Essentially, you would have to stay in US if you filed now until at least mid-October; you really can't file I-485 until you come back from canada (and according to your lawyer, only 60 days after THAT!
6. Yeah, you are already screwed. The only other suggestion I would have is to opt for Consular processing (CP) when filing I-140. that avoids the issue of preparing all the things you need for I-485, and allows you to travell up until your consular appointment. the only hurdle then is convincing your lawyer to file I-140 by itself. You can switch to I-485 next year, when the air clears, if you haven't gotten GC by then.

the more I think of it, CP may be the perfect choice for you.
 
Regarding #4, I just replied to him quoting:

"The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay [under TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused."
Letter from Yvonne M. LaFleur, Chief, INS Business & Trade Services Branch
(posted on AILA InfoNet as “I-140 Filing Not Dispositive for TN” (June 18, 1996)).

But what's that 60 day rule after entering on TN? Did I miss that in CuriousGeorge's post?
 
Fraudulent entry applies to all AOS processes, not just AOS resulting from TN/EB sponsorship. The notion is that entering in an non-immigrant status which does not allow immig intent (ie not H or L) and filing for AOS is always questionable. One should have left US and applied for immigrant entry at a consulate.
The question then becomes how long after such entry is it legimate to conclude that you did not have the intention of filing AOS. Most say 90 days. Some say 60. Most say anything less than 60 puts the burden of proof on the beneficiary to prove he only made up his mind after entry, more than 60 days, puts the burden of proof on USCIS to prove that you already had the intent (difficult). If the entry is deemed to be fraudulent, the I-485 is considered to have been fiked while out-of-status, and is thus denied.

Most of not all of non-immigrants who marry a US citizen do so so with anobvious fraudulent entry. But USCIS simply decides to turn a blind eye to this because they don;t wish to annoy the US citizen spouse. They ahve no such concern for annoying an employer who does this.
http://www.hooyou.com/familybased/exceptions.html

We've been kicking around this TN to AOS to GC for 15 years herea and have never heard of someone being denied GC on the basis of fraudulent entry, nor being denied entry on existing TN after I-140 is approved.

What do you think of the Consular Processing approach?
 
Once again thanks nelsona for the insight!
CP is out of the question for this lawyer because it affects my employability with my current employer. There is no EAD. And as you said convincing him to just file 140 is tough. He just doesn't want me to cross the border after 140 is filed, CP or AOS.
 
The more I think about it, the more I feel I am better off staying on TN until the merger goes through. It is just unfortunate the timing of this merger is interfering with my trip and my GC application. The lawyer rushing me into it does smell fishy. I think it's all about the money. He wants to make his money before the merger closes because he may not be the lawyer of the new merged company.
 
Well, right now, I would say it is your trip that is impacting the GC process, not the merger. Remember, that even if there was absolutely no uncertainty about your sponsorship future, you need to submit your GC paperwork and then be prepared to stay in US 3-4 months. You are not able to do this right now, with the October trip coming up.

So, lawyer pushing you or not, you can't file I-1485 because of your upcoming trip-- period. But you can file I-140 -- and indicate Consular processing on it -- with absolutely no adverse consequences right now.
 
I'm trying hard to cancel my trip to Ottawa. In the meantime, here is what the lawyer said about I-140 and TN:

"That excerpt states that a pending I-140 is just one factor to consider. In your case because your actual intent is to apply for US permanent residence, if you are questioned further it could be an issue."

So by the same token, we shouldn't travel at all after an I-140 has been filed.
 
Btw you mentioned: "I am currently on TN and my PERM has just got approved". If you wait to submit your paperwork until after the merger (which you mention is in January), wont the PERM have expired by then (valid for 6 months only)..
 
Hello Mister said:
Btw you mentioned: "I am currently on TN and my PERM has just got approved". If you wait to submit your paperwork until after the merger (which you mention is in January), wont the PERM have expired by then (valid for 6 months only)..
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Yes that is correct. That's why I want the lawyer to file I-140 for the time being to keep my PERM alive but he won't do it. I-485 can be filed at a much later date.
 
Yup. It's sounding more and more that you shoudl file I-140 and indicate CP. These days, you could have your GC by the fall.

But notice what your lawyer is saying: He is basically telling you that if your Priority date had not been current, he would not have even begun the process, since if your PD was not current, he couldn't file I-140 and I-485 at the same time. Once he filed PERM for you, he was committed to seeing this through -- now he's caving. What a piece of work.

Just tell him you can;t file I-485 becuase you aren't able to stay in US suffciently long enough to keep it alive until I-131/I-765 approved. Then if he balks, tell your management that he is risking flushing their investment down the drain by letting your PERM expire.
He works for them.
 
"So by the same token, we shouldn't travel at all after an I-140 has been filed."
That is obviously wrong. Back in the days what GC was backlogged YEARS, and one could not file I-485 along with their I-140, no one on TN with I-140 approved had trouble travelling -- that is the whole point of the USCIS and CBP memos. in such case the filing of the I-485 is what demonstrates immig intent, nothing else. And if you ask for consular processing (which is quicker than AOS), then that issue disappears altogether, because you cannot have immig intent on any entry if you have a consular process, pending, since you MUST leave the country for that final interview.
He should never have agreed to take on your case if he was not comfortable with the TN to GC process, and you could have found someone else who was, or should have entered you in the H1-b lottery last April.

As indicated in the curiousgeorge posting, I-140 without I-485 is actually the safer, more conservative approach than filing I-485 concurrently.

And note that that thread deals so much with TN to GC through AOS, because TN to GC through CP is never an issue.
 
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One final thing, since I-140 "in and of itself" in NOT a reason to day, and your lawyer has basically said "something else other than I-140" will get you denied, wouldn't that mean that you have already "committed" immig intent, acording to your lawyer? Preposterous.
 
nelsona said:
One final thing, since I-140 "in and of itself" in NOT a reason to day, and your lawyer has basically said "something else other than I-140" will get you denied, wouldn't that mean that you have already "committed" immig intent, acording to your lawyer? Preposterous.
Click to expand...

I know! Basically what he means I already have an immigrant intent regardless of I-140. LOL!!
I wish I could get my own lawyer but my employer uses this big law firm and won't let us get our own. What I can do is hire my own lawyer to represent me and my interests when dealing with their lawyer.
Unfortunately my previous employer has used up all my 6 years of H-1B and I haven't been outside the US for a year.
 
This is what he said when I proposed the I-140 w/ CP:
"without even getting into the legal reasons why that won't help, you're asking us (me and employer) to sign an I-140 that includes an intentional misrepresentation."
 
What would be the misrepresentation? That the employer is not going to hire you? There is nothing in I-140 that asks whether you will leave the country or not, and nothing in I-140 that asks whether you have immig intent or not.

Ask him to show you which question on I-140 he would be answering falsely. You can (and I think I've demonstrated) go for CP, its to your advantage. And there is nothing misleading about changing your mind later. there is even a form for it: I-824. it was done all the time during the retrogression days.

This guy has simply dug in his heels because he got in over his head. he should have told you months ago that he was not going to have the balls to do AOS from TN. he's basically saying you need to freeze your movement for 5 months (2 before and 3 after) , without even knowing if your sponsor will finish the process. Completely conrtary to both the spirit and the letter of the I-140 memos.

It was these kinds of abuse by employers and their hacks that AC21 was trying to overcome.

I guess he had no qualms about listing a Cdn address for you on all these forms. Money talks.
 
Huh, HR just called me! It looks like I raised a bit of hell :) Ok, the bottom line is my employer and their lawyer think I-140 is immigrant intent. Sarcastically I am glad my PD is current, otherwise they would've let the PERM go waste because I have to travel to Canada once or twice a year!!!
 
Well, they are wrong, but, it is their process, for now.
So what are they going to do? and what are you going to do?
I guess they are going to file concurrently and entrap you. maybe you will have your EAD/AP by october. Of course, from what you say, I doubt that that will go smoothly. For example: you already have your Civil Surgeon appointment set up for some time next week, right?
 
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