Approved I-140 with current priority date can actually casue issues with a TN application

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OttawaSenators

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With all due respect to all the experts on this forum, the following website says an approved I-140 with a current priority date can trigger immigrant intent. I've also met a lawyer who told me I would have a hard time getting a new TN for a new employer because I have a hot right out of oven approved I-140 and my priority date is current. The safest way is to ask for Consular Processing.

"Once Immigrant Visa Number Becomes Available,

Immigrant Intent Issues Loom.

In the last stage of the green card process an immigration officer may have reason to allege immigrant intent. After the PERM process is complete, an I-140 petition is approved, and a visa number becomes available, a TN visa professional may then embark on the final step for a green card. At this stage it is possible to obtain a green card during the period of stay authorized under TN visa status. Because of this immediate access to a green card, an immigration official may allege immigrant intent."

http://www.tnvisabulletin.com/applying-for-green-card-tn-st/
 
Sorry, but I didn't read anything in that post that would indicate the I-140 approval prevents subsequent TN approval, especially if their EB category is not current. . In fact Brian includes the famous Lafleur letter, which has stood the test of time as DHS policy, as PROOF that TN approval after I-140 is fine. You aren't presenting anything that has not already been digested years ago (note the rev date on the page from 2007!).


That said, the question becomes: Why would someone with an approved I-140 and a current EB category, not be filing I-485 immediately, this availing themselves of EAD and AP, which is what ALL TN -AOS- GC candidates go through.

By the way, you might be misunderstanding AC-21 as it pertains to subsequent jobs: Not only must the I-140 be approved, but ALSO the I-485 must have been pending for 180 days. In the case you mention, you don't have an I-140 anymore, if that sponsor is no longer sponsoring you. You would have to submit another PERM and I-140 in this case. What would be preserved would be your original priority date, nothing more. Sorry I didn't catch this oversight in your other question.

To sum up: If you get an approved I-140 and your sponsor drops you, you no longer have an immigrant process that even hints at success, so you would not be denied TN for immig intent. Again, it is the filing of I-485 that brings immig intent.
 
The key phrase in this scenario is a "current priority date". So let's leave out EB categories that are not current in this thread to avoid confusing people. EB2 ROW, for example, is always current. Basically what this says is if you have an approved I-140 and you are EB2 ROW, you may have problems getting a new TN. There is possibly problems during crossing the border too. So my employer's lawyer, Fragomen, is right by saying to avoid all travel to Canada and back for now.

Now why I-485 has not been filed yet in this scenario could be due to different reasons. Maybe you are still in the process of preparing documents for 485. Maybe your employer is in the process of laying you off but hasn't revoked the I-140 yet. Maybe you are looking for a new job and you haven't signed the 485 papers yet. This is a period where the CIS or CBP officer can allege immigrant intent and reject entry and/or new TN application. Now would the CBP officer take into account the reason why you haven't applied for 485 yet? I don't have the answer to that. Maybe he/she will like one the reasons I mentioned above and grant you entry. But that is a very subjective thing.

As for invoking AC21 before 180 days (off the topic), I will post the CIS memo later on (I'm not at my computer right now where I have a copy of it).
 
As for AC21, here is what USCIS has said back in 2005:

"Question 10. Should service centers or district offices deny portability cases on the sole
basis that the alien has left his or her employment with the I-140 petitioner prior to the
I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective
employment. Since there is no requirement that the alien have ever been employed by the petitioner
while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-
485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all
cases an offer of employment must have been bona fide. This means that, as of the time the I-140
was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have
had the intent to employ the beneficiary, and the alien must have intended to undertake the
employment, upon adjustment. Adjudicators should not presume absence of such intent and may
take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in
appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal
that was submitted after an I-485 has been pending for 180 days."

Basically you can invoke AC21 during the first 180 days if and only if the underlying I-140 is not withdrawn/revoked. A lot of employers don't withdraw I-140's in case of massive layoffs. Small companies do withdraw though.
 
I don't see anything in curiousgeorge's post regarding this. He actually says:

"After your I-140 is approved, verify that your priority date is current, and make sure that you have at least 6 months left on your TN, preferably 10 months. If so, proceed to step 4. If not, apply for a new TN now, and also apply for new a new TD for each of your dependants now."

But how can you apply for a new TN if the CIS officer can allege immigrant intent based on an approved I-140 and a current PD? So let's face it, it is a gray area and the lawyers are right about being cautious.
 
As I said, these are AC21 issues. If the employer forgets to pull the I-140, it remains valid and you can work on EAD (remember -- you get EAD if you are under AC21 because your I-485 was filed). You can't invoke AC21 without at least having I-485 filed. The firm is doing you a disservice by not filing I-485 as sson as possible, since iy delays invocation of AC21.
If you are that worried that you will not get TN with an approved I-140 (you should not be worried) then don't file I-140. Continue as you have for the past decade.
Without I-485 filed for 180 days, there is no AC21 protection, and you will start PERM/I-140 from scratch (with old priority date).

So, as always, when getting TN, irt comes down to having I-485 NOT filed. If it is NOT filed, you have no standing on AC21, and have lost your sponsor, so no immig process exists for you. If you have filed I-485, you are no longer needing TN, you get EAD until your I-485 is dead, at wheich time you no longer have a immig process.'

But this is another reason why one should ALWAYS file concurrently, to get AP/EAD well before the issue come's up. These remain valid until the I485 is pulled (so your next job is on EAD not TN, If it is pulled, no longer have immig intent, and can get TN again.

And just so we are clear on the definition of concurrent. It means filing I-485 based on a non-approved (but filed) I-485. It doesn't;t have to be the same day, but sometime before the I-140 is approved. Each day you wait delays any hope of invoking AC21,
 
Let's not get sidetracked. This post and thread is not about AC21. We know AC21 is when I-485 is filed. This thread is about an approved I-140 with a current PD but no filed I-485. Currently my employer is holding my 485 as hostage. I-140 was approved a month ago. And they won't even let me hire my own lawyer to file 485. They won't cooperate to give me a copy of I-140.

The question is: can I now join another company on a new TN? The answer is both yes and no. An approved I-140 with current PD can be considered immigrant intent.

I talked to another lawyer last Friday and she said the longer the I-140 is left abandoned without a filed I-485, the easier my chances of getting a new TN because it would show I lost my immigrant intent by not filing I-485. Basically my employer keeping my 485 hostage will eventually backfire at them. But currently it does not look good for me.
 
OttawaSenators ... "I talked to another lawyer last Friday and she said the longer the I-140 is left abandoned without a filed I-485, the easier my chances of getting a new TN because it would show I lost my immigrant intent by not filing I-485." Perhaps an easier way out if you do plan on moving to a different employer on a new TN is to try and get it by mail (while continuing to stay within the US) through premium processing and then leave the current position. Your concern is how you would defend any notion of immig intent, therefore, why not just avoid that situation altogether of actually going to a POE and instead opt for mail-based new TN
 
So, as I've said all along. You can't travel after filing I-485.
Before filing I-485, you either have I-140 pending (so not approved -- no immig intent) or you have it approved (at which you have filed I-485, or you are not taking this seriously, (remember -- YOU can file I-485, the employer doesn't have to). YOU file I-485, not the employer. So the day he puts in I-140, submit all the other docs your self. Then at least you can get EAD and AP (which certainly allows you to travel and work) and your AC21 clock starts to run.

If, as you and the lawyers say, you can't travel after I-140, then you better go all in, as you are gaining nothing by not filing I-485 (which is probably how we started this whole circular discussion).

As to your quotes, they don't say you can invoke I-140 early, they merely say at after the 180 days, they can't look back and say, hey you left before 180 days, no AC21c for you. They are talking about the moment of adjudication, long after the 180 days have passed. Until 180 days, there is no AC21.
 
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Mister's solution is a very good one. While I take the position that neither CBP nor CIS will deny based on I-140 approved, any concern that you've found really only points to CBP, so go the CIS route. On I-129, the form asks if the PETITIONER has ever filed an immigration petition for the beneficiary. They would of course answer no, since the I-140 was filed by someone else.
Then after you get TN, simply have new employer file a new PERM/I-140.
I think you are getting hung up about somehow "saving" the process begun by your current employer thru AC21, which unless you actually file I-485, is impossible.

The problem? It has taken you a very long time to get a sponsor. Will you be able to find another?
What is the current processing time on I-485 these days. I would think AC21 (which came about due the AOS backlogs) is rarely invoked these days, as I-485s are adjudicted under that 180 day limit anyways.
 
Nelsona, I don't know why you keep bringing up AC21 in this thread. We talked about it extensively in another thread. When I wrote the other thread, I was exploring all possible future solutions post-485 in case I get laid off. Now let's focus on the problem at hand which is my employer is holding my 485 hostage.

Another solution is FOIA the I-140 so I can get a copy of it and file 485 myself. This is against my employer's policy and they want everybody to use their lawyer even for 485. If they get a wind of it, they may even withdraw the I-140 as retaliation. Plus FOIA takes a good 6 months.

As for Mister's proposal, it is much safer but lawyers say even CIS might reject or RFE a TN application due to a recently approved I-140 with a current PD. I think I am better off waiting another month or two and then start looking for a new job. Basically let time kill the immigrant intent thing slowly.
 
Ottawa, this is really all one thread, and one issue.

"Lawyers say". many lawyers say even filing an I-140 on TN is wrong, which we know to be hogwash. I don't know of ANYONE who has been denied entry on TN, or denied new TN solely on the basis of I-140 approved, PD current or not.
We would certainly have heard of one by now.

The reason we include AC21 in this discussion is that, without AC21, if your sponsor lets you go, the I-140 is no longer viable, and your supposed immig intent disappears completely (if it ever existed), instantly. Even a dead I-485 can be overcome to get TN, so a dead I-140 certinly presents no problem.

In any event, the problem you face is not immig intent by you, it is lack of immig intent by your employer to actually proceed . Delaying filing an I-485 when you are current, is absolute proof of this. You could have had GC before the merger. It's analoguous to the firm that won't file PERM until you win H1-B lottery. I'm sorry but I know no way around this.
 
Ottawa ... I understand your preference to try and wait for a couple of months, get a new job and then apply for a new TN, however, if you are applying for a new TN even after 2-3 months, the I-140 from the previous employer would still be on the record with the CIS. They could very well invoke the notion of immig intent even then just like they could do so now. Now if you actually withdraw current I140 and then file for a new TN, that could result in two situations:
1. immig intent vanishes and your new TN with the new employer gets approved or
2. (worse case) even when you apply for your new TN with a withdrawn, CIS sees that you previously had an I140 and decides to deny TN since they think you had an immig intent in the past so might have it again in future

dont mean to scare or discourage you but all i am saying is there are endless possibilities of what might happen if you start to consider 140 as immig intent. My 2c
 
The reason we include AC21 in this discussion is that, without AC21, if your sponsor lets you go, the I-140 is no longer viable, and your supposed immig intent disappears completely (if it ever existed), instantly. Even a dead I-485 can be overcome to get TN, so a dead I-140 certinly presents no problem.
Click to expand...

I love the sound of that. Getting laid off during the first 180 days is not the end of the TN world :) Actually somebody told me in case of a layoff, I should withdraw the 485 myself before CIS issues NOID due to a withdrawn 140. A denial of AOS wipes off your current status and you'll have to go back to Canada immediately!

Now back to my current situation, I hope I won't be the first person who applies for TN and gets rejected :(
 
Pretty sure a denial of AOS does NOT wipe off your current status. If your status is "adjustee" it does, of course. Or if your H or L were extended on the basis of pending I-485, it does. But if you are still in another non-immigrant status (particularly unextended H or L, but any status will do) you do not have to leave, if the denial is is based on a problem with your petition. If it is based on YOU (criminal, etc) it may result in removal proceedings.
It's one of the reasons to staty on h1-B while AOS pending rather than switch to EAD.
 
I've got good news: They have just applied for my I-485. Let the AC21 clock begin :)
I think there was some monetary problems. They probably needed to cash the check from my sponsor or something in those lines.
 
Reading these made me kind of nervous if i am taking the TN-GC route anyways seems like a good prelude tho
thanks guys for posting those feed backs
 
cheenus said:
Reading these made me kind of nervous if i am taking the TN-GC route anyways seems like a good prelude tho
thanks guys for posting those feed backs
Click to expand...
What seems to be your concern cheenus? If you have a rather stable job and stable employer, go for it. My company is getting bought by another company and that makes my job a bit shaky. Also, it took a while for my employer to let their lawyer file my AOS and that scared me.
 
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