Canadian Citizen, Laid off on H1

S

shevas

Registered Users (C)
Hi All,

I would really appreciate some input while I try to navigate this really difficult time. I am an Indian born Canadian citizen and was laid off from an American company after 18 year, with my last day being August 2 so my grace period of 60 days ends on October 1. The employer had filed for my green card and my I-140 was approved back in 2016 with a priority date of January 2016.
What are my best options? I am looking for another job who can transfer my H1B but I want to be realistic and practical. Moving out of the country would mean disrupting the family, pulling my kid out of school, selling my house, etc. The company lawyers shared that my best option is to change status to a B visa as post-Covid the B-visa allows you 6 months to find for a job. The company legal counsel seemed to say that if I switched to a B visa, and find a job within the 6 months, then the new employer could file my H1 without having to go through the quota and lottery. They said having an approved I-140 beyond 180 days allows to file or maybe extend the H1 without going through the lottery process. If I couldn't find a new employer within 6 months, they said go back to Canada, keep looking for a job and then have the employer transfer/extend my H1. Is that possible?

I have always worked for an end user company, but is transferring my H1 to a boutique consulting company as option? Or a better option? Am I missing other options? This has been extremely stressful for me to navigate and I appreciate any and all feedback, thoughts or ideas.
 
Have you filed I-485 yet. If you have, your status would remain I-485 pending, no need to change.
If you have not filed I-485, you may be eligible for a TN. Thaat new sponsor may be willing to hop on to your I-140 and continue your GC sponsorship.

Since this is a TN forum, not a Canadian forum. so for other questions, you need to ask on forums dedicated to H1-B, H1-B transfers, and I-140 portability issues.
 
nelsona said:
Have you filed I-485 yet. If you have, your status would remain I-485 pending, no need to change.
If you have not filed I-485, you may be eligible for a TN. Thaat new sponsor may be willing to hop on to your I-140 and continue your GC sponsorship.

Since this is a TN forum, not a Canadian forum. so for other questions, you need to ask on forums dedicated to H1-B, H1-B transfers, and I-140 portability issues.
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I have not yet filed for I-485 because my priority date is not current. I have posted on the H1B forum as well, but my case is so unique with me being a Indian born Canadian citizen that probably open up more than one options as the next step. So I would love some help and guidance. If the next employer I find agrees to a TN, I’m fine switching to a TN. What happens then to my approved I-140 when the priority date becomes current? Can I file an amendment to convert the I-140 from AOS to CP?
 
Your new sponsor would have to pick up your I-140, thus the job would still need to be similar, so H1-B may be "better" (since your H4 spouse would still have EAD, and absolutely no immigrant intent issues). I merely mention possibility of TN, because it is slightly easier to get quickly and, frankly, because this is a TN forum, so you must have some inkling of getting a TN. It would give an employer some time to decide whether they wish to sponsor you for H1-B (or GC) while you get to enjoy a paycheck.

Whether you got TN or H1-B, There would be no need to switch to CP, since (a) nothing precludes you from TN until you file I-485 and (b) you would get EAD after filing I-485 in any event, which you won't get with CP. You can switch from AOS to CP anytime before filing I-485. The fact that you haven't done so in the intervening that shows that there is no great advantage to doing so.

Again, I invite you to find more information on I-140 portability elsewhere, since this forum is not a clearinghouse for all questions posed by Cdns.
 
nelsona said:
Your new sponsor would have to pick up your I-140, thus the job would still need to be similar, so H1-B may be "better" (since your H4 spouse would still have EAD, and absolutely no immigrant intent issues). I merely mention possibility of TN, because it is slightly easier to get quickly and, frankly, because this is a TN forum, so you must have some inkling of getting a TN. It would give an employer some time to decide whether they wish to sponsor you for H1-B (or GC) while you get to enjoy a paycheck.

Whether you got TN or H1-B, There would be no need to switch to CP, since (a) nothing precludes you from TN until you file I-485 and (b) you would get EAD after filing I-485 in any event, which you won't get with CP. You can switch from AOS to CP anytime before filing I-485. The fact that you haven't done so in the intervening that shows that there is no great advantage to doing so.

Again, I invite you to find more information on I-140 portability elsewhere, since this forum is not a clearinghouse for all questions posed by Cdns.
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Thank you, I have decided to switch over to TN because in this market, it’s very difficult to find an employer willing to do file an H1B visa
 
Just be aware that a sponsor being unwilling to sponsor your H1-B, may indicate an unwillingness to port your I-140, which is what you really need.
 
nelsona said:
Just be aware that a sponsor being unwilling to sponsor your H1-B, may indicate an unwillingness to port your I-140, which is what you really need.
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For sure, we have a need for two things now. To stay in the country so our kid can finish school and then find an employer to port our I-140. The immediate need is to stay so we don’t uproot, and unfortunately its so hard to find an employer who will port our I-140 within 60 days. We’re trying for sure, but are open to TN to quickly land something.
If we file for a COS to TN, does the question around has anyone filed an immigration petition you a Yes or No? Similarly are you or anyone included in this application an applicant of an immigrant visa? Is that Yes or No? Especially with the approved I-140?
 
Well, indeed you don't need someone to port your I-140 immediately, so focus on getting a job. You can file an I-539 for B2 when the grace period is nearing its end.
When you file an I-129 for the new job (probably better/quicker to go to the border) you do answer yes to that question. TNs are specifically allowed to file for TN even with approved I-140.

If the new employer is insisting on filing I-129 for you, then why not ask them to file for H1-B rather than TN. Only a little more paperwork.

By the way I assume your spouse is also Indian-born? Otherwise you could use cross-chargeability to use her nationality when determining your AOS filing eligibility.
 
Thanks Nelsona, my spouse is Indian citizen. The lawyers said the path of least resistance from finding a new job maybe the TN visa, and an AOS from TN can be filed when the priority date becomes current. Lawyer also confirmed while applying for a job, it's acceptable to select I will not need sponsorship since TN is not sponsorship.
 
shevas said:
AOS from TN can be filed when the priority date becomes current.
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- This is when your new employer files PERM and then I-140 and while filing the new I-140, requests to recapture the previous priority date (Jan 2016) and when that becomes current.
shevas said:
Lawyer also confirmed while applying for a job, it's acceptable to select I will not need sponsorship since TN is not sponsorship.
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- correct.
 
Let's pump the brakes here.

For one, IF the worker is eligible for I-140 porting, one is not required to re-submit PERM and I-140. That is why it is portable. The sponsor would notify USCIS that they are assuming responsibility.

But a much more important issue is whether or not this poster is even eligible for port -- which is the main reason he should be asking on an I-140 or I-485/AOS site -- to port it is not the I-140 that must be 180 days old -- I believe it is the I-485 that must be pending 180 days.. Our poster say he has not submitted I-485, so AC21 may not even apply here. It is really the I-485 that is ported

As to "sponsorship". Call it (or not) what you want but is sponsorship. If you need to put "no" to get by a robot application system, so be it, but your sponsor will need to provide you a letter and -- if you don't go to the border-- will need to file an I-129, just like any other employer-sponsored work status.

He is eligible for H1-B porting under AC21, up until his current I-94 expires. Not 60 days.
 
@shevas
You need to find new job to work on either TN or H-1B. Keep in mind your new employer needs to REFILE new PERM & I-140 and port priority date and you will file I-485 whenever priority date becomes current.
 
nelsona said:
Let's pump the brakes here.

For one, IF the worker is eligible for I-140 porting, one is not required to re-submit PERM and I-140. That is why it is portable. The sponsor would notify USCIS that they are assuming responsibility.

But a much more important issue is whether or not this poster is even eligible for port -- which is the main reason he should be asking on an I-140 or I-485/AOS site -- to port it is not the I-140 that must be 180 days old -- I believe it is the I-485 that must be pending 180 days.. Our poster say he has not submitted I-485, so AC21 may not even apply here. It is really the I-485 that is ported

As to "sponsorship". Call it (or not) what you want but is sponsorship. If you need to put "no" to get by a robot application system, so be it, but your sponsor will need to provide you a letter and -- if you don't go to the border-- will need to file an I-129, just like any other employer-sponsored work status.

He is eligible for H1-B porting under AC21, up until his current I-94 expires. Not 60 days.
Click to expand...

Correct, my 485 is not yet filed, because I am waiting for the priority date. If I drive up to the border with the required documents for the TN, I could get it that way, right?
If/when I find this new employer willing to hire me on a TN, will they need to file my PERM & 140 right at that time? Or can that be done in a few months?
 
nelsona said:
Let's pump the brakes here.

For one, IF the worker is eligible for I-140 porting, one is not required to re-submit PERM and I-140. That is why it is portable. The sponsor would notify USCIS that they are assuming responsibility.

But a much more important issue is whether or not this poster is even eligible for port -- which is the main reason he should be asking on an I-140 or I-485/AOS site -- to port it is not the I-140 that must be 180 days old -- I believe it is the I-485 that must be pending 180 days.. Our poster say he has not submitted I-485, so AC21 may not even apply here. It is really the I-485 that is ported

As to "sponsorship". Call it (or not) what you want but is sponsorship. If you need to put "no" to get by a robot application system, so be it, but your sponsor will need to provide you a letter and -- if you don't go to the border-- will need to file an I-129, just like any other employer-sponsored work status.

He is eligible for H1-B porting under AC21, up until his current I-94 expires. Not 60 days.
Click to expand...
I also posted on the 140 and 485 thread, hopenit got posted at the right place
 
shevas said:
Correct, my 485 is not yet filed, because I am waiting for the priority date. If I drive up to the border with the required documents for the TN, I could get it that way, right?
Click to expand...

- Yes.
shevas said:
If/when I find this new employer willing to hire me on a TN, will they need to file my PERM & 140 right at that time? Or can that be done in a few months?
Click to expand...

- It will be sometime after you are hired. Yes, can be done in a few months.
 
Your porting on I-140 should be done before your AOS date becomes current, so that you do not have to delay AOS waiting for a new I-140.
 
nelsona said:
Your porting on I-140 should be done before your AOS date becomes current, so that you do not have to delay AOS waiting for a new I-140.
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Thank you, so this porting can be anytime between getting a new job on TN and my priority date becoming current?
 
Your sponsor should be taking up your case the day they hire you. The more they invest in you the less chance they will let you go. Don't have "anytime" as a goal. Have "yesterday" as your goal.
 
nelsona said:
Your sponsor should be taking up your case the day they hire you. The more they invest in you the less chance they will let you go. Don't have "anytime" as a goal. Have "yesterday" as your goal.
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Will do, thanks so much
 
nelsona said:
Your sponsor should be taking up your case the day they hire you. The more they invest in you the less chance they will let you go. Don't have "anytime" as a goal. Have "yesterday" as your goal.
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Hey Nelsona,

I was finally able to find a job, and this potential employer is willing to hire me on a TN. Upon my earlier request, my employer who laid me off has extended my last date to October 1. Can I have a concurrent TN? If not, how does the timing of this work? The employed would like me to join asap, but my severance with the previous company will be honored when I work for them until October 1. I am trying to give my potential employer who is offering me the job on TN a joining date and want to be sure that I share accurate information.
 
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