Apply new TN @ POE with a existing approved 140

[goes]

Apply new TN @ POE with an existing approved 140

I am on H1 and have a approved LC/140. I want to switch to a new company using TN. Will I get problem when I apply TN at POE? I understand having a approved 140 should be fine for mail-in TN application, but for POE I am not so sure. Could any one help me ? Do you have any this kind of POE Experiences? Thanks!!

 

[goes]

Thank you very much! bzuccaro.
Looks like I'd better not take that risk. What I can do is the H1b transfer then. Is it possible to convert H1 to TN through mail-in application? I was told that could be done only by TN renew with same employer. Is this true? If it's doable, how long/how much will it take? Sorry for asking so many questions

Thanks again!!

G.,

Here's a letter from Yvonne M. LaFleur, of the legacy INS, sent to our office on the subject:

***

Dear Mr. Reich:

This refers to your letter of March 7, in which you state that a Canadian citizen was refused admission as a TN nonimmigrant under the North American Free Trade Agreement (the NAFTA) because he is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker, and, therefore, could not establish that his entry was without the intent to establish permanent residence in the United States. You submit that a TN nonimmigrant may be admitted to the United States to complete a temporary employment engagement even though he or she is the beneficiary of an approved I-140 petition.


***

 

[curiousGeorge]

Since you're applying for your first TN, you would need to apply at the POE. There is a risk of applying for a TN at the POE with a pending and/or approved I-140, and this not advisable.

Had you been applying for a subsequent TN, the advice would have been different, since NSC would be the one adjudicating your I-129.

So although not completely relevant in your case, here is what the Nebraska Service Center had to say about the topic:

"After considerable discussion between the Nebraska Service Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form I-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an I-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has a nonimmigrant intent."
AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet at Doc. No. 02111431 (Nov. 14, 2002).

 

[goes]

You should be able to request a change of status from H-1B to TN status through the VSC - even though your I-129 petition will be filed by a new employer.

There are some apparent conflicting rules in your situation. An individual in one non-immigrant status may apply for a change of status to a TN through the Vermont Service Center. Also, an individual already in TN status may change employers by filing through the VSC. On the other hand, applications for initial TN status must be submitted at the border.

Despite this ambiguity in the rules, we have in the past had success with filing petitions through the Service Center despite requesting both a change of status and a change of employer.

Have you also considered the issues that may arise by changing employers while you already have an approved I-140 and Labor Certification?

The reason I want to switch job is due to retro. I have my EB3 LC/140 approved in my current company. But I dont know when I can file 485 and looks like EB3 is pretty dead. The new company offers me better salary and EB2 GC application and more stable. That's why. I was told my PD could be retained and so I decided to make a such move. What are the " issues that may arise by changing employers while you already have an approved I-140 and Labor Certification?"
Do you mind tell me more? Thanks!!

 

[goes]

curiousGeorge, thanks for the reply!
You and bzuccaro both mentioned that first time TN can only be done in POE, could you please give me some officially link for this? Thanks!

Since you're applying for your first TN, you would need to apply at the POE. There is a risk of applying for a TN at the POE with a pending and/or approved I-140, and this not advisable.

Had you been applying for a subsequent TN, the advice would have been different, since NSC would be the one adjudicating your I-129.

So although not completely relevant in your case, here is what the Nebraska Service Center had to say about the topic:

"After considerable discussion between the Nebraska Service Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form I-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an I-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has a nonimmigrant intent."
AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet at Doc. No. 02111431 (Nov. 14, 2002).