Can I apply for I-140/I-485 (Canadian Citizen working on TN, born in India)

V

vdr123

Registered Users (C)
Hello,
I have got my LC-PERM approval recently.
(I am a Canadian Citizen working on TN (NAFTA))

With your knowledge I have few questions I would like to clarify:

- My Lawyer said he called the CIS Services and asked them if my application can be "current" under Canadian Citizenship (I told him I was born in India)...and the CIS said that I can use "my country of citizenship"...IS THIS CORRECT??? :confused:
- Can I apply for I-140 ONLY without the I-485(my lawyer said his I-140's are getting approved in 3 weeks)
- Can I wait after my I-140 approval to apply for my I-485?
- I am planning to get married some time with in next 6 month...not sure how it will effect my future spouse
- Will my TN become invalid, if I get I-140 apporval?...and if my application is not current, can i get my EAD/AP and apply for I-485???

Please let me know.

Thank You
 
vdr123 said:
Hello,
I have got my LC-PERM approval recently.
(I am a Canadian Citizen working on TN (NAFTA))

With your knowledge I have few questions I would like to clarify:

- My Lawyer said he called the CIS Services and asked them if my application can be "current" under Canadian Citizenship (I told him I was born in India)...and the CIS said that I can use "my country of citizenship"...IS THIS CORRECT??? :confused:
- Can I apply for I-140 ONLY without the I-485(my lawyer said his I-140's are getting approved in 3 weeks)
- Can I wait after my I-140 approval to apply for my I-485?
- I am planning to get married some time with in next 6 month...not sure how it will effect my future spouse
- Will my TN become invalid, if I get I-140 apporval?...and if my application is not current, can i get my EAD/AP and apply for I-485???

Please let me know.

Thank You
Click to expand...

This has been discussed many times and it is your Coutry of birth not citizenship. No matter what your lawyer says.

Being on a Trade NAfta affects the way things should be done for GC application. You have many things to watch out for.
Here is the thread for this.
http://www.immigrationportal.com/showthread.php?t=123851&highlight=tn+I-485
It will answer many of your questions.
If your country is retrogressed then you CAN NOT file for I-485 and because of that you can't apply for EAD or AP. You can file PERM and the I-140.
 
vdr123 said:
- My Lawyer said he called the CIS Services and asked them if my application can be "current" under Canadian Citizenship (I told him I was born in India)...and the CIS said that I can use "my country of citizenship"...IS THIS CORRECT??? :confused:
Click to expand...
USCIS will consider your eligible citizenship for the purposes of priority dates solely on the country where you were born, regardless of any other citizenships you may have received via naturalization.
vdr123 said:
- Can I apply for I-140 ONLY without the I-485(my lawyer said his I-140's are getting approved in 3 weeks)
Click to expand...
Yes you can apply for I-140 separately.
vdr123 said:
- Can I wait after my I-140 approval to apply for my I-485?
Click to expand...
Yes, no problem.
vdr123 said:
- I am planning to get married some time with in next 6 month...not sure how it will effect my future spouse
Click to expand...
You can apply for your I-140 now, it makes no difference. It’s probably better to wait until you get married before you apply for your I-485 though, since I've heard of forum members that have approval delays due to their files never really getting joined into one file.
vdr123 said:
- Will my TN become invalid, if I get I-140 apporval?
Click to expand...
No. There was a USCIS memo that came out that essentially said that simply filing an I-140 does not invalidate, nor make you ineligible for a TN.

A word of caution, your TN will become invalid if one of these situations occurs:
1) You have a pending I-485, and your TN expires outright. You would be in "I-485 pending status". You would need an EAD to continue working, and an AP to travel out of the US. You are no longer eligible to apply or renew your TN.
- or -
2) You have a pending I-485, your I-140 is approved, and you use your EAD to switch jobs while trying to invoke AC-21. You would be in "I-485 pending status". You would need an EAD to continue working and you would need an AP to travel out of the US. You are no longer eligible to apply or renew your TN.
- or -
3) You have a pending I-485, and you use your EAD for a second job. You would be in "I-485 pending status". You would need an EAD to continue working for both the former TN job, and the new job you acquired, and you would need an AP to travel out of the US. You are no longer eligible to apply or renew your TN.
- or -
4) You have pending I-485, and you reenter the US using your AP. You would be in "I-485 pending status". You would need an EAD to continue working. You are no longer eligible to apply or renew your TN.
Note that you should not leave the US between the short time that you applied for your I-485, and before your AP arrives. This would cause your I-485 to be abandoned.
Also, make sure that when you apply for your I-485/EAD/AP, make sure that you have enough time left on your TN get your EAD approved, or so you can get an interim-EAD so you can continue working. Essentially you ensure that your TN will be valid for about 3-4 months after you apply for I-485/EAD/AP. Otherwise you'd have to take a leave of absence when your TN expires, although you would be in legal status to remain in the US as mentioned in #1 above..
vdr123 said:
if my application is not current, can i get my EAD/AP and apply for I-485???
Click to expand...
You can only apply for your I-485/EAD/AP when your priority date is current.


This informative link will tell you everything you want to know:
http://grasmick.com/board/?topic=topic1&msg=45872
 
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Thank You for your reply's...

I have been telling my company lawyer about it...even sent him a document as proof from a different lawfirm (about using 'country of birth" NOT "country of citizenship")...this is the reply I get:

"I have to admit after I read the newsletter you sent it had me questioning myself. So to be on the safe side, I contacted the CIS Business liaison unit which is set-up solely for employers and their representatives. My understanding of the law is correct and the information you sent from that website is incorrect. In other words, you are indeed eligible to file the I-140 and I-485 concurrently at this time."

- I have to renew my TN in jan 06
- I am planning to apply for I-140 ( my lawyer says his 140's are getting approved in 1 month)...I am not sure if this is a good idea if my application is not going to be current (depending on country of birth)

Q) Can I apply for EAD/AP/I-485.???...I know my application is not current...but can I get a EAD/AP and dont have to renew TN???
Q) Safest will be...to apply for H1B for 2006 quota...and transfer to H1...then i dont need to get my TN renewed again in 07.

Please advice...and how to convince my lawyer!!! :confused:
 
vdr123 said:
So to be on the safe side, I contacted the CIS Business liaison unit which is set-up solely for employers and their representatives. My understanding of the law is correct and the information you sent from that website is incorrect. In other words, you are indeed eligible to file the I-140 and I-485 concurrently at this time."
Click to expand...

Ask your lawyer to guarantee IN WRITING that the I-140 will not be rejected because the PD is not current, and that your country of chargeability will be Canada, not India. :)

And after that, ask your attorney to read what the Department of State has to say on the matter:

There are numerical limits on the number of immigrant visas that can be granted to aliens form any one foreign country. This limit is the same for all countries. The limit is based on place of birth, not citizenship. Where the immigrant is "charged", means that person is counted towards a given country's numerical limit. For example, an immigrant born in Ethiopia is "charged" to Ethiopia, and therefore counted towards reaching the numerical limit for that country. The person would be "charged" to Ethiopia, even if the immigrant born in Ethiopia was born of Yemeni parents and has a passport from Yemen.

From here: http://travel.state.gov/visa/frvi/glossary/glossary_1363.html

Country of chargeability is Immigration Law 101. It makes me wonder about what other basic errors your attorney is making.
 
vdr123 said:
Q) Can I apply for EAD/AP/I-485.???...I know my application is not current...but can I get a EAD/AP and dont have to renew TN???
Click to expand...
No. EAD an AP applications will be rejected, unless there is an I-485 that was also filed in your name, and since India (your birth country) is not current, you can't file your I-485 yet.
vdr123 said:
Q) Safest will be...to apply for H1B for 2006 quota...and transfer to H1...then i dont need to get my TN renewed again in 07.
Click to expand...

Although not necessary, Its always safer to file for I-485 while on a H1b, instead of filing from a TN, especially when filing concurently, or if you have a hard-nosed lawyer.

The bigger concern here is that your lawyer seems incompetant, and also stubborn. This may not be the last time he tries to convince you he is right....and even if he listens to you this time, you'll be questioning his every move from this point forward. Unfortunately he is the lawyer chosen by the company, so you'd need to convince the company that you have concerns that he is incompetant, and chances are that they'll listen to him before they listen to you when it comes to legal matters.
 
TheRealCanadian said:
Ask your lawyer to guarantee IN WRITING that the I-140 will not be rejected because the PD is not current, and that your country of chargeability will be Canada, not India. :)
Click to expand...

(I assume you meant I-485, not I-140)....

Also worthy of note here....the people answering the phones at USCIS are infamous for providing misleading infomation. I bet if he called back 3 more times, he would get 3 more answers. :D

Get the proof in writing, then there will be no confusion. You will see that chargability is based on birth country.
 
The people who man the phones at the 1-800 number ARE NOT immigration officers. They have a very limited knowlege. In many cases their advice is absolutely wrong. In your case I would say try and find a new immigration lawyer. Your doesn't seem to have a clue.
I did not use my company's lawyers. I found a very good immigration attorney I trusted to do my processing. This is to important and costly to let just any idiot pursue this for you.
 
That is so weird. I mean to base filing on country of birth. The person could be born in India, and at 1 year of age could be brought to CANADA. He could even not speak his native language, be citizen of canada all his life. And then this country of birth absurd...weird.
 
I think the reason for that is that if they only go by country of citizenship, lots and lots of, let's say, Indians would get a Canadian GC and citizenship because it's much easier and faster, and then immediately appply for US GC. By going by country of birth, it's the US government's way of keeping the immigation numbers from certain countries to a certain levels.
 
merovingian said:
That is so weird. I mean to base filing on country of birth.
Click to expand...
As you may have already noticed, many things with regard to the immigration processs are "weird".

In some countres you don't get citizenship of that country, just because you were born there. For example, the laws in Poland state that you only get Polish citizenship if your parents were born in Poland, regardless of whether you were born in Poland or not. So if a baby was born in Poland, to non-Polish parents (i.e. tourists, workers, visitors, etc), then in the eyes of the state department, a person like this would fall under the priority dates relative to Poland, since she was born in Poland, even though this person does not truely have Polish citizenship in the eyes of the Polish government.
 
If you don't have to pay a cent, just let your company pays and do that. The worst case, they lose money and your I140 is still process.
If you have to pay, just only do I140.

Like my case, my company lawyer suggests to apply I140/I485/EAD/AP for me and I485/EAD/AP for my family even we still have more than 2 years H1B valid (it is the waste of EAD and AP). Plus suggest yearly renew. I don't even complain a word since I don't pay a cent for those (actually I have to pay for the passport photograph for my family, but it is fine). So, I tell my employer and the lawyer that just do as they wish. Who care :) Some time those lawyer want to dig as much money as possible from the employer. Let them do so.
 
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Hi,
My straight forward answer is fire your attorney. Either he/she has no knowledge, or he is speaking lie.

I am Canadian Citizen and Indian born. I filed concurrently before retrogration.

USCIS only consider Country of Birth not Country of Citizen. There is no guerentee that your I 140 will approve in three weeks. My I 140 is still pending after three month.

On file of I 140, you can not loose your TN status but when you will go for renewal of TN, you won't get renewal. However, it is gray area but chances of denial are 99%. You can file I140/I485 from TN, but cannot renew TN while your I 140/and or I485 pending.

Best way is, File 140/485/EAD/AP concureent, and use EAD untill you get green card. Once you have, EAD, you don't need TN any more.

Unfortunately, you are Indian born and sue to retrogration, you can not file I 485/EAD/AP. I would advise to get H1B and file immigration, otherwise you may be in trouble.

Good luck




vdr123 said:
Hello,
I have got my LC-PERM approval recently.
(I am a Canadian Citizen working on TN (NAFTA))

With your knowledge I have few questions I would like to clarify:

- My Lawyer said he called the CIS Services and asked them if my application can be "current" under Canadian Citizenship (I told him I was born in India)...and the CIS said that I can use "my country of citizenship"...IS THIS CORRECT??? :confused:
- Can I apply for I-140 ONLY without the I-485(my lawyer said his I-140's are getting approved in 3 weeks)
- Can I wait after my I-140 approval to apply for my I-485?
- I am planning to get married some time with in next 6 month...not sure how it will effect my future spouse
- Will my TN become invalid, if I get I-140 apporval?...and if my application is not current, can i get my EAD/AP and apply for I-485???

Please let me know.

Thank You
Click to expand...
 
priyargc said:
On file of I 140, you can not loose your TN status but when you will go for renewal of TN, you won't get renewal. However, it is gray area but chances of denial are 99%. You can file I140/I485 from TN, but cannot renew TN while your I 140/and or I485 pending.

Best way is, File 140/485/EAD/AP concureent, and use EAD untill you get green card. Once you have, EAD, you don't need TN any more.
Click to expand...

priyarc,
Slightly incorrect statement. You CAN continue to renew your TN, even after you filed your I-140, as long as you have NOT filed your I-485.

Secondly, you can't file concurrently, unless your priority date is current, and being from India, chances are its not current and since you can't file your I-485 then you would not be able to file for your EAD/AP either. By doing this, you risk letting your TN expire, and not having obtained your EAD in time to continue working.
 
curiousGeorge said:
priyarc,
Slightly incorrect statement. You CAN continue to renew your TN, even after you filed your I-140, as long as you have NOT filed your I-485.


Curious George he already stated this in his reply
Secondly, you can't file concurrently, unless your priority date is current, and being from India, chances are its not current and since you can't file your I-485 then you would not be able to file for your EAD/AP either.

By doing this, you risk letting your TN expire, and not having obtained your EAD in time to continue working.
Click to expand...
 
Thanks Curious,

Still TN to I140/I485 to TN is in grey area. I am not sure about USCIS posting regarding renewal of TN is safe while I 140 pending.

I know, some of the cases denied in past with I 140 pending (not I 485). It depend upon the immigration officer. Risk is always there.

I know, we can't file concurrent unless priority dates current.

Now, for Indian born alien, priority dates are not current so safe way is to transefer to H1 and file I 140.

The person should consult good attorney.


curiousGeorge said:
priyarc,
Slightly incorrect statement. You CAN continue to renew your TN, even after you filed your I-140, as long as you have NOT filed your I-485.

Secondly, you can't file concurrently, unless your priority date is current, and being from India, chances are its not current and since you can't file your I-485 then you would not be able to file for your EAD/AP either. By doing this, you risk letting your TN expire, and not having obtained your EAD in time to continue working.
Click to expand...
 
khodalmd said:
I am not sure about USCIS posting regarding renewal of TN is safe while I 140 pending.
Click to expand...
Does this make you more sure?

Letter from Yvonne M. LaFleur, Chief, INS Business & Trade Services Branch (posted on AILA InfoNet as “I-140 Filing Not Dispositive for TN” (June 18, 1996)).

The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay [under TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused.

AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet Doc. No. 02111431 (Nov. 14, 2002).

The Nebraska Service Center, which has exclusive jurisdiction over TN applications made on Form I-129 now states that the filing of an I-140 immigrant petition is simply one factor to consider in the adjudication of a TN extension and should not automatically result in a denial. The Nebraska Service Center had previously indicated that its adjudicators were instructed to deny TN applications if an I-140 immigrant petition had already been filed on behalf of the beneficiaries because such beneficiaries had clearly abandoned their nonimmigrant intent.

Choy v. Barber, 279 F.2d 642, 645-46 (9th Cir. 1960)

there is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.

(citing Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)

a desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent
 
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