Apply for TD with approved I140

banf

New Member
Canadian family lives in the US now. I work under H1B (with an approved I-140 sponsored by the employee) and my spouse works under TN. I have taken a job offered in Canada (with a better salary, career future, and retirement plan) and will resign my US job in a month. My spouse and kid want to stay in the USA for a few more years so my kid can complete his high school. I plan to drive between Canada and US every week as the new job in Canada is not far from my current home (rented, not owned) in the USA. TD could be the best option for me to do so. Although my US employer will close the sponsorship after I resign, I do have an approved I-140. Is it possible for me to get TD status? If it is possible, what kinds of documents could help me to get TD? Any suggestions are welcome and thank you!
 

nelsona

Registered Users (C)
TD will not be denied with an approved I-140. Your spouse's I-94 and marriage cert is all you need.
 

banf

New Member
Thanks to nelsona for answering my question. I worry that TD could be denied due to "dual intention", because an approved I-140 indicates my immigration intention, but TD doesn't allow any immigration intention. Sorry for my long post but I plan to prepare well to get a TD.

(1) What would be a good way to answer if CBP officer questions about my "dual intention"?

(2) I checked the USCIS website and found "Proof the TN nonimmigrant is maintaining his or her TN nonimmigrant status" is needed when the for Dependents or Spouses of TN nonimmigrants applies for TD. What kinds of documents could prove my spouse's non-immigration status? We don't own a house/condo in Canada but we do want to move back to Canada after my kid finishes high school.

(3) My spouse will accompany me and my kid to get TD status. We will bring a marriage certificate and birth certificate. Will the employment letter and pay stubs from my spouse's company be useful?

(4) Will the offer letter from my Canadian job and/or the first-month pay stub be good enough to show my non-immigration intention?

(5) Due to the time-flexibility of my job, I can stay 3-4 days in Canada and 4-3 days in the US per week. The total number of days staying in the US would be larger than 183 days in a year if holidays are counted as well. It is why I think TD could be a better option for me than visitor status. Assume I can get TD, would I have trouble crossing the border every week?

(6) I noticed that CBP officers looked at the vehicle license plate every time I entered the US by driving. I guess they use a licence plate to determine if a person lives in the US or Canada. Currently, I have a US driver license and vehicle license plate. Do I need to change them to Canadian driver license and license plate in order to obtain TD (if it helps) and avoid the potential trouble whenever I cross the border in the future?

Any suggestion/answers are appreciated.
 
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banf

New Member
Hi nelsona, Thanks again for answering my answer. I have been reading the posts in the forum and found one of your posts to answer "Renewal of TN with approved I-140" in Feb. 2014. You mentioned "Both the CBP and USCIS have been instructed NOT to deny TN petitions on the basis of approved I-140. This has been in place for 10 years now. "

I am wondering if it is still the case in 2019? I am quite worried that my TD could be denied at the port of entry due to approved I-140 and my priority date is current.
 

1AurCitizen

Registered Users (C)
I am wondering if it is still the case in 2019? I am quite worried that my TD could be denied at the port of entry due to approved I-140 and my priority date is current.

Nelson's specific words "TD will not be denied with an approved I-140." in Post#2 above.
 

banf

New Member
Thanks to 1AurCitizen for the reply. Also thanks to nelsona's post #2 above, I felt quite relaxed. I am asking again if TD can be granted with an approved I-140 because I asked the same question to two attorneys yesterday. They both said I would have trouble to get TD because I have an approved I-140. The reason is, as same as TN, TD can not show immigration intent either).

I am just wondering if anyone successfully got TD (or TN) with approved 1-140 in 2019. And your experience or advice is very appreciated.

We do plan to move back to Canada after my kid finishes his high school in three years, but we don't have strong Canadian ties except for my job in Canada. We have been living in the US for 5 years and don't have other family members in Canada or own a house in Canada. Any suggestions regarding how to prepare for TN interview is very appreciated.
 
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SS0033

Member
Thanks to 1AurCitizen for the reply. Also thanks to nelsona's post #2 above, I felt quite relaxed. I am asking again if TD can be granted with an approved I-140 because I asked the same question to two attorneys yesterday. They both said I would have trouble to get TD because I have an approved I-140. The reason is, as same as TN, TD can not show immigration intent either).

I am just wondering if anyone successfully got TD (or TN) with approved 1-140 in 2019. And your experience or advice is very appreciated.

We do plan to move back to Canada after my kid finishes his high school in three years, but we don't have strong Canadian ties except for my job in Canada. We have been living in the US for 5 years and don't have other family members in Canada or own a house in Canada. Any suggestions regarding how to prepare for TN interview is very appreciated.

I got the TN and TD with approved I-140 couple of months back. They didn't even ask me about it.
 

banf

New Member
SS0033, Thank you so much for the reply! It is a big encouragement to hear you got them. May I ask if you got them at the port of entry (land)? What documents did you bring with you? Do you live in Canada or USA? Were you able to travel between Canada and the USA multiple times?
 
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Amberleaf

Active Member
I have been following this forum for four years. (since it has helped me go from TN to H1B to GC).

Every time this question comes up, Nelsona responds that TN (or TD) with an approved I-140 is no issue.
Then the OP responds, "but my lawyer says it is risky, what do I do?"

You have to take the risk. SS033 just gave you an example of his entry with an approved I-140.

Once you leave your current H1B employer, go to POE and bring your spouse I-94 and your marriage certificate and request TD status. Done.
Report back on the this forum the results for the benefit of future people reading this forum.
 

SS0033

Member
SS0033, Thank you so much for the reply! It is a big encouragement to hear you got them. May I ask if you got them at the port of entry (land)? What documents did you bring with you? Do you live in Canada or USA? Were you able to travel between Canada and the USA multiple times?


Please refer to the below Thread "GC from TN visa through EB3"
https://forums.immigration.com/threads/gc-from-tn-visa-through-eb3.337114/

You will see all the detailed answers of getting a TN and TD, list of documents required for TN and TD, experience with renewing TN and TD, applying for a GC within the TN status, driving back and forth on TN and the risks, and a lot of different scenarios that happened in between.
And ................. a lot more scenarios in detail !!!

I used to travel back and forth every week on TN and had nothing to worry about until a couple of weeks ago. But since you are on TD, you should not have to defend the TN status while crossing.

And for encouragement, my attorney was against for renewing TN/TD because of I-140. I had to convince him but he was still hesitant. Once i got the TN/TD, he was quite surprised and i am sure he suggested his other clients to do the same.
 
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banf

New Member
SS0033. Thanks for answering my questions. I am going to read your posts.

Thanks to you all for kind help! I will go request TD by the end of July and will report my result.
 

banf

New Member
My spouse (TN holder) will accompany me to POE to change my H1B to TD this weekend. Just wondering if I should give my current I-94 (H1B status) to Canadian border when we drive out of the US, or I shall keep it when I drive out of the US and give it to US border when I apply for TD on my way back to US? Thank you!
 

banf

New Member
I read SS0033's thread and got to know about "90 days rule".

May I ask another question? Assme I can get TD and cross the border every week. Is it possible for me to apply for EB2 NIW in such a condition? Will it violate 90 days rule?
 

SS0033

Member
I read SS0033's thread and got to know about "90 days rule".

May I ask another question? Assme I can get TD and cross the border every week. Is it possible for me to apply for EB2 NIW in such a condition? Will it violate 90 days rule?

If you are doing Consular Processing (CP), the 90 day rule doesn't apply. But if you are going Adjustment of Status (AOS) I-485, you need to be within US for 90 days. Crossing the border every week will reset it and that is the reason why i choose CP.
 

banf

New Member
SS0033: Thank for your reply and big congratuations to your GC!

I would choose CP. But my case is different from yours: your EB2 is sponsed by your employer; I would apply for NIW (no employer). Just wondering if I am eligible to file I-140 for NIW without violating 90-day rule or any other rules I may be not aware of, assuming I can get TD and cross the border every week?
 

SS0033

Member
SS0033: Thank for your reply and big congratuations to your GC!

I would choose CP. But my case is different from yours: your EB2 is sponsed by your employer; I would apply for NIW (no employer). Just wondering if I am eligible to file I-140 for NIW without violating 90-day rule or any other rules I may be not aware of, assuming I can get TD and cross the border every week?

The 90 day rule applies for I-485 (AOS) only and not for I-140.
I am not sure about the NIW process.
 
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SS0033

Member
Thank you. I will wait for the answer from Nelsona and others.

:eek: i had a feeling you don't believe me :D lol
But, if you check my TN to GC thread you will see that mentioned a couple of times by others.

Best of Luck
 

banf

New Member
I do beleive you and appreciate your generous help by posting your experience! They are precious to us.

I mentioned that I wait for others to answer becuase I want to know if NIW make a difference regarding I-140 submission and 90-days rule.
 
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