Can get H-1B after using up the 6 years and being currently on TN based on PERM?

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I know this is a TN forum but I'd like to share this and see if other Canadians have had a similar experience. I was on H-1B for 6 years for my former employer. Then had to switch back to TN. Now I have joined a new company that wants to sponsor me for GC. Currently I am on TN. However their lawyer says, once my PERM is approved they want to apply for an H-1B extension based on my PERM.

1. Is this even possible?
2. If so, then I shouldn't be subject to the H-1B cap because I was counted towards 2005 cap and this is just an extension of that 2005 H-1B, right?
3. My priority date is current. So what is the point of an H-1B if I can file I-140 and I-485 concurrently and get an EAD in 3 months?
 
1. There are simple criteria for being allowed to keep (or, in your case, return to) H1-B status, after your 6-year clock has been used up:

1. You have an approved I-140 but are not able to file I-485 (This is not your case; you do not have an approved I-140)
or
2. ONE YEAR has passed since your PERM was sumbitted, and you have an I-140 pending. (This would not apply to you until a year from PERM submission). that is why ther is a crucial momnet at the 5-year mark of h1, for the employer to file pERM for their employee. No one did this for you.

So, I would say they are not quite correct.

2. Correct, once you have been approved for H1 subject to cap, you are never again subject (as long as you do not use the clock reset method of leaving US for a year).

3. Exactly. Stay on TN and change to EAD. Sounds like theirt not quite upto speed on TN to speed on TN to GC, and are looking for a way (incorrect in my opinion) to get you back on h1.
Just a note of caution: you do not yet have a Priority date. A priority date would be assigned based on filing of PERM. You never know what might happen between now and the time they are to file your I-140 and your i-485 gets approved. All you can say now is that if you had an approved perm, you could file I-140/I-485 today.
 
So just to recap what they are intending:
1. File PERM
2. Get PERM approved.
3. Apply for H1-B (In my opinion they cannot -- the law by the way that I summarized above is called AC21
4. At same time submit I-140/I-485 (the will probably not want to file EAD and AP becasue they think you are getting h1 -- wrong).
5. keep you on H1-B until you get GC approved.

The correct way of proceeding is:
1. File PERM
2. Get PERM approved.
3. File I-140/I-485/I-131/I-765 (you stay in US until latter 2 get aaproved)
4. Switch to EAD until GC is approved.
This method saves you the trouble of getting h1 (which is moot since you aren't eligible) but it does make you stuck in US between the day you file I-485 and the day you get AP/EAD approval.
 
Thanks nelsona for the reply and the link.
Now I don't trust the lawyer and am concerned he would screw me up. The PERM has been filed on 12/19/14 and they say my assigned priority date is also 12/19/14. Is this correct?
Maybe he is assuming my priority date isn't current and they can't do concurrent 140/485. He hasn't replied to my question 3 above yet.
I am not going to sign the 485 until I make sure they file for EAD/AP. This is a big screw-up if he assumes I can get H1 and there is no need for EAD.
Or maybe he does not have concurrent 140/485 in mind and wants to do 140 first, then H1, and then 485. Let's wait and see what he replies. I'll keep you posted.
 
Yes, your priority date WILL be 12/19/14, when the I-140 is filed. So, you have passed all the PERM requirements, or they are just starting?

As to being current, what category are you filing under? EB-3 is NOT current.

But, regardless, he CANNOT file H1-B petition for you, since you have used up your 6-year clock and have not met the criteria for extension, since your PERM is not a year old, and you do not have an approved I-140. One of those things has to happen before you can get another h1-B. And since you aren;'t going to wait a year, that means an approved i-140.
Once you have an approved I-140 (assuming your GC category is not current, THEN you can decde whether it is best to go on H1-B or stay on TN (most prefer h1-B). But by the USCIS and CBP regs, you can stay on TN, and enter US on TN as long as you want, as long as you haven't filed I-485.

This sounds like classic "you can't get GC from TN" that so many lawyers are clueless about!

But I guarantee that you aren't eligible for h1 right now, and won't be until I-140 is approved or PERM has lasted a year.
 
Yes I passed all the PERM requirements (which took 7 months). They just filed the PERM and I am EB2.
His email says some time in the future we will eventually convert you to H1.
 
Oh he just replied to my email and confirmed what you said about H1 extensions. Now he says in my case, there is no need for H1. He didn't know my priority date was current.

The whole conversation with him started with an email he sent out to me saying that when I cross the border during holidays, I might be asked if my employer has applied for GC on my behalf, to which I should answer no cause PERM is not a GC application but when we get to 140 stage, I should answer yes but by then, he will get me an H1.
 
When these people tell me you cannot go from non-immigrant status like TN to GC, I tell them: how the heck do all these foreigners come from Europe and Asia on B2 and then get married to a US citizen and get a GC?!! My former employer's lawyer was speechless when I told him that. Eventually he came clean and told me that it was my "former employer's policy" not to go down the TN to GC path and had nothing to do with the legality of it.
 
By the way nelsona, please wish me luck as there is a good chance of PERM getting audited. An Audit could delay PERM by a year or two. In that case, I won't be able to do 140/485 in the lifetime of my current 3 year TN (a bit over 2 years left of it).
 
As we all know, PERM is NOT a process that disallows you to keep get or renew TN -- and nor is I-140. I would have thought that someone on TN as long as you would be quite familiar with the process from TN to GC as it as been well-publicized and described in minute detail her an elsewhere. You can stay on TN for another 10 years without any problem after filing PERM or I-140 -- until you actually file I-485. Period. PERM, I-140, do not stop TN.

Don't worry. You do NOT need H1, and cannot get it until I-140 is passed anyways, at which time you will have also filed I-485. Stay on TN for the next year or until filing I-485
 
And to be quite frank, I would not trust anything this lawyer says. Your previous employer was clueless about all this. They were simply following this guy's advice, which as we now know is wrong.

Get yourself upto speed on all these things yourself, so that you won't get hood-winked by "your employer" (meaning this lawyer) making wrong decisions that would harm you.

Read the curiousgeorge outline on TN to GC process.
 
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