Cdn citizen on H1B; withdrawn I-485 - renew, switch to TN or other options

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cdn_citizen

New Member
I am currently working in the US on an H1B visa which will expire after the first 3 year term in the fall of 2006. I have previously worked on multiple TN visas since 1995. In 2002 I got married and filed an I-485 to adjust my status to permanent resident. In the meantime, I moved to a new job and the INS lost my file after submitting the change of address so the process took way longer than it should have and by the time I was notified of my interview I was forced to withdraw my I-485 application and switch to H1B status.

The time is fast approaching where I will need to renew my H1B at considerable cost for the higher filing fees and an immigration lawyer. In addition the stay on the H1B seems finite since it seems I will need to leave the country for a year long period before being able to reapply under this status. Therefore I am considering switching back to a TN visa but want to know the risks/procedure/experiences leaving the US to a Canadian port of entry on an H1B and attempting to get a TN. Some other information which may be pertinent is that I have a 6 year old US citizen son and also own a house in the US......does this tend to show intent to immigrate? Is there a problem with filing for a TN after I have previously filed an I-485 or is that only a problem if you have an active application?

I have searched the board yet only found bits and pieces which applied to my situation so any help in making an informed decision would be greatly appreciated.
 
Would I be better to attempt to get a TN through the mail prior to H1B expiry date? If so what is the procedure to switch from H1B to TN via mail? If denied can I stay on H1B visa? Thx for the help.
 
In a normal situation, switching from H1B to TN has no issues. Many people have done it without problems. The issue at hand is not switching from H1b to TN, but rather switching to TN after having filed an I-485.

In your case, it may be a little trickier. Others on this forum like therealcanadian, grunggy, or bzucarro hopefully have more insight as well. By filing an I-485 you have shown immigrant intent, which would usually make you ineligible for a TN visa. But since you have withdrawn your I-485, you may be eligible, but it’s not straight forward by any means. I have heard that the only way to get a TN after this situation has occurred is to show proof that you once again have renewed ties with Canada, and also you must show proof that your I-485 was withdrawn. The reason is that it’s possible that when you go apply for your TN, the officer may see some stale status concerning your I-485, and he may think its still pending, so you need to prove its no longer pending, and has been withdrawn. On the other hand the officer may not notice that you ever applied for an I-485, and you would get the TN without any problems.

There once was a member on this forum that had a legitimate I-485 pending, and did not know that one cannot qualify for a TN in this situation. When she went to the border, the officer issued her a TN without any problems. The I-485 never came into question at that time. At the time I recommended that the member re-apply for their I-485. Other members suggested that the I-485 was not abandoned. The member never came back to tell us how the story ended when it came time to adjudicate the I-485. Normally, in this situation, upon adjudication of the I-485 application, the service center would tend to consider the I-485 as abandoned, since the person applied for a status that does not allow for dual intent, but again, luck could pay a big part.

If you want my opinion, you might get the TN, if you show the appropriate evidence to the officer that your I-485 was withdrawn. I haven't heard of anyone actually attempting this, its all just theories. If you try it, I'd like to know how it went.

Only filing for I-485 shows clear immigrant intent. Anyone can own property in the US, and just because your son was born in the US, does not mean that you plan to immigrate there.
 
Thanks for the reply guys. I guess I never made it clear but the reason for the withdrawal was that after I moved the INS lost my case files and they sent me requests for proof that I had ever filed a case which I had my attorney send. They sent another request for more proof. In the mean time I filed for divorce and withdrew my I-485 and filed for H1B status though my employer thinking I could go that route to a green card. Actually once I withdrew the application it seemed to help them find the case and they sent me a fingerprinting notice (which I had already had done a year prior). Then they sent me an interview letter and I had to get my attorneys to inform them that I had already been on an H1B for 6 months lol. What really irks me is that if I hadn't moved for another 3-4 months I would have had a green card and also I was in Memphis which had a processing center 5 miles from my house.

I am a contractor however and in order to get the green card through the H1B I would need to be permanent with this company and they have been on a perm. hiring freeze for 3 years and there are some other instability issues with the company (possible move to mexico etc). That's the reason for me considering TN status since I have used them in the past and it is very easy for me to acquire a temp job and am familiar with the process. Most engineering contract houses do not want to deal with an H1B filing, not too mention the length of it and the finite nature of the visa without getting permanent residency.

As far as the intent issue is, I once had the intent to immigrate based on the fact that I had a wife who was an American citizen. That reason (and method) is no longer valid. I do have full legal and physical custody of my son who is American though I don't know whether that is considered a tie to this country.

So if I was to apply for a TN visa from my current H1B status when would I want to do it since my current H1B expires November 2006? Would I want to do it sooner rather than later so that if they turned down the TN application I would still have time to file for the H1B extension? Any likely problems with the H1B renewal (or any others I haven't considered) after a TN denial?

Thanks for all the help and advice.
 
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