Applying for TN when my H1B is up in the air.

S

smaug87

New Member
Hello Guys, I am new here and would like opinions of you guys on my visa status. I am a Canadian citizen.

First of all, let me explain my situation right now.
1) I am under H1B for non-for-profit job ending in 6/30/16.
2) My lottery for H1B have been picked. However, USCIS is requesting further evidence by asking me to either show that I can legally stay til my new H1B start date of 10/1/16 OR let them know which US consulate I would like to have interview (but AFAIK, Canadian citizens don't need to go through consulate for visa interview)
3) My work starts on July.

So, my question is, can I respond to RFE saying that I will leave US on 6/30/16?
Also, can I get TN status to start working from 7/1/16 and COS from 10/1/16 to H1B while waiting to hear back from USCIS? Will this be alright?

Thank you!
 
First, let's address the RFE.
Looks like your RFE is focused on the COS portion of your application, ie, whether they would issue an I-94 weith the approval or not. I suspect your sponsor asked for COS when you weren't (and still aren't) in a position to qualify.

So, the question they are wishing to clarify on I-129 is Part 4, question 1, which does NOT ask only about Consulate, but also PFI and POE. So the answer to your RFE, that no, you will not be remaining in US (since you don't have an I-94 at this point that will keep you legal), and then simply state whichever PFI/POE you think you might show up at (it really doesn't matter which one). Just re-emphasize that you are Cdn and not subject to visa requirement for H1-B. I would NOT be answering anything about how you will stay legal, because at this point you have no proof, and that is not what they are asking, and you should not delay in answering the RFE. they are not requiring that you stay legal, they are simply asking that if you can't, where will you be processed.

Note that your petition is not under question, just the processing of it.

So, that said, what you do between 6/30 and 10/1 is entirely up to you and your sponsor. Technically your new job CANNOT start 7/1 since your H1 will only start 10/1. So, if you/they want you to start working 7/1 you need to one of the following:

1. head to the border with a TN petition over Jul 1/Jul 4 weekend. Get the TN for the full term.
2. have your sponsor submit an I-129 premium processing NOW, for a July 1 start date, again ask for full term.

Neither of these has impact on your H1-B process, which will still be approved, but will require that you go to the border sometime at your convenience after 10/1 to change status.
 
nelsona said:
First, let's address the RFE.
Looks like your RFE is focused on the COS portion of your application, ie, whether they would issue an I-94 weith the approval or not. I suspect your sponsor asked for COS when you weren't (and still aren't) in a position to qualify.

So, the question they are wishing to clarify on I-129 is Part 4, question 1, which does NOT ask only about Consulate, but also PFI and POE. So the answer to your RFE, that no, you will not be remaining in US (since you don't have an I-94 at this point that will keep you legal), and then simply state whichever PFI/POE you think you might show up at (it really doesn't matter which one). Just re-emphasize that you are Cdn and not subject to visa requirement for H1-B. I would NOT be answering anything about how you will stay legal, because at this point you have no proof, and that is not what they are asking, and you should not delay in answering the RFE. they are not requiring that you stay legal, they are simply asking that if you can't, where will you be processed.

Note that your petition is not under question, just the processing of it.

So, that said, what you do between 6/30 and 10/1 is entirely up to you and your sponsor. Technically your new job CANNOT start 7/1 since your H1 will only start 10/1. So, if you/they want you to start working 7/1 you need to one of the following:

1. head to the border with a TN petition over Jul 1/Jul 4 weekend. Get the TN for the full term.
2. have your sponsor submit an I-129 premium processing NOW, for a July 1 start date, again ask for full term.

Neither of these has impact on your H1-B process, which will still be approved, but will require that you go to the border sometime at your convenience after 10/1 to change status.
Click to expand...

Thank you very much nelsona. Lots of respect to you for your knowledge and service in this forum.

To summarize your reply to the level of layperson like me

1) Send RFE stating that I will leave before 6/30 and simply re-emphasize that I am CDN and state that (for example) I will be entering via Pearson Airport (And since I am Canadian, approval of status will be done by USCIS instead of consulate like citizens of other countries. Is this correct?)
2) If I want to start to work from 7/1, simply get TN visa from border
3) After 10/1, go back to Canada and upon POE, change my status to H1B.

Am I understanding the whole thing correctly?

Once again, thank you very much.
 
1. I already said what you should say. do not say you will leave before 6/30, since that is not germane to the question; that is not what they are asking. and approval of anyone's H1 status is always done by USCIS, and entry is always determined by CBP. That fact that you are Cdn avoids the need to get a Consular visa form the State department, that is all.

2&3: Check.
 
nelsona said:
1. I already said what you should say. do not say you will leave before 6/30, since that is not germane to the question; that is not what they are asking. and approval of anyone's H1 status is always done by USCIS, and entry is always determined by CBP. That fact that you are Cdn avoids the need to get a Consular visa form the State department, that is all.

2&3: Check.
Click to expand...


Haha thank you again! Sorry if I sound stupid but i should simply reply by saying I wont stay in US (without mentioning leaving before 6/30) and POE.

Also, say that H1B wasnt either approved or denied by 7/1 from which I may be on TN status. Will this affect my H1B decision in any way?

Thank you and sorry about asking lots of repetitive questions. This is my first time and gotta say its quite nervewrecking.
 
Once again: I have said what you should say. Answer the question in the RFE, nothing more. You have no proof of legal status beyond 6/30. NO. That is all they want to know. And since you don't have proof, they want to know where you will be processed. Nothing about when you will leave, what you will do, or what flavor of ice cream you prefer. Why do you insist on embellishing, with possibly incorrect information?


I said earlier."Neither of these has impact on your H1-B process"
 
nelsona said:
Once again: I have said what you should say. Answer the question in the RFE, nothing more. You have no proof of legal status beyond 6/30. NO. That is all they want to know. And since you don't have proof, they want to know where you will be processed. Nothing about when you will leave, what you will do, or what flavor of ice cream you prefer. Why do you insist on embellishing, with possibly incorrect information?


I said earlier."Neither of these has impact on your H1-B process"
Click to expand...

Thank you for your kindness and knowledge!
 
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