Converting TN -> H1B at border

L

Ldshaw

Registered Users (C)
Hi,

I will be traveling to Canada in the next few days and was wondering how I go about converting to H1B status. I have an approved I-797A with an effective date of 10/1/07, and I am currently working under the TN status with an expiry date in April 08.

Here's my question: Will I be facing any problems upon my entrance to the US? I traveled out of the US over X'mas but on my way back at the border, I entered in my TN status as I did not have my I797A form with me. Upon the return of this trip I'd like to convert to H1B so if I show them my I797A form this time, will the immigration give me a hard time about entering the US during X'mas time in my prior status?

Thank you.
 
I'm under the impression you got a TN last year in March or April. Assuming your H1 was approved in say May or June with a start date of October 1, and you are now working for the company on the H1B, you are now in H1B status. Your start date of Oct. 1 negates your TN once you start working for that company (I am assuming that your TN and H1 might actually be for the same company). In other words, if you are still working for the same company from the TN to your H1B, then you are now in H1B status. It's known as "last action taken" which becomes the status you are now in. So if you switch companies, and get a TN, you will negate the H1. BTW....don't do that.....just transfer your H1 to the new company.
 
Yes, I have been working for the same company. It's just that upon my last entry to the US earlier this year I got a new I-94 stating that my TN goes until 04/08; and upon my return to the US this time I will be showing them the I797-A with an I-94 stating that my H1 should've kicked in 10/07, or I guess it doesn't matter because my H1B is already "activated"?
 
Yep,

You're H1B now.

They just put the TN expiry date because it has to expire at some point.

So you should be good to go.
 
What if you change the company, and now you did have approved H1 I-94 on hand which ofcourse you can't use, and you are working for another company on a different TN.

What action you are required to take? should surrender the H1B I-94? do nothing? inform immigration that you are still under TN?

in my case I had approved I-94 for H1b which was activating 10/1/07, but on August 2007 I changed the employer and got the new TN, but never did anything for the H1.

Should I supposed to do something back then?

thanks
 
Oh-Oh, by the last action doctrine, your H1 DID come into effect on 10/01/07. Your new TN died. Your choice on 10/01 would have been to go to work for your H1 sponsor, or go to the border and re-enter on TN.

Unless you have since left the country, and re-entered on the TN, your work authorization/statuys are indeed questionable.

You need to discuss this with a lawyer.
 
I agree with Nelson. When I read the original post, "last action" was what came to mind. My non-lawyerly view of what has happened: your H1 was approved, thus stopping your TN (you can only be in one status at a time). You left the country but re-entered on a TN status that you don't have. I have no idea what your status is now. This might be a technicality, it might be a big deal. You need to talk to a lawyer to find out how to get things corrected.
 
oh man,

but I left the country and got the new TN for the new company in august 2007.

I know it was before H1 activates.

I know I have to talk to lawyer on that, any recommendation?

will leaving country and comming back on the TN will fix this?
 
The TN issued in august was legitimate.

However, so was the h1 issued on Oct 01. And by last action it became your status.

The only thing that would change this after Oct 1, was entry on TN (Bill, I have no reason to thing the TN was NOT viable, it simply isn't valid, slight distinction).

Of course if shyboy didn't leave and re-enter US since October, he has been working in TN illegally, in my opinion.

So, leaving US and coming back in TN will fix you going forward. However there is the matter of the 4 months that you have been illegally working, thata needs to be resolved BEFORE leaving US.

B
 
nelsona said:
Of course if shyboy didn't leave and re-enter US since October, he has been working in TN illegally, in my opinion.

So, leaving US and coming back in TN will fix you going forward. However there is the matter of the 4 months that you have been illegally working, thata needs to be resolved BEFORE leaving US.

B
Click to expand...

I appreciate your comments on that, but as you see this is not as easy to understand as it looks like, it was not intentionally done.

If I knew I would probably leave the country after oct 1st and come back. but now is there any kind of apology statement that I can make to immigration, which could fix the last 4 months issue?


What should I do? if I need to get the lawyer, any recommendation?

please help me to get out of this....
 
Hmm, I'm a little bit confused. Are Nelson / Bill's replies pertaining to Shyboy's case or my case? I've been working under the same employer all along.

Thanks.
 
Nelson / Bill: OK. whew. almost gave me a heart attack. i thought both of you did not agree with SIMSD's answer.
 
Bill_S said:
I agree with Nelson. When I read the original post, "last action" was what came to mind. My non-lawyerly view of what has happened: your H1 was approved, thus stopping your TN (you can only be in one status at a time). You left the country but re-entered on a TN status that you don't have. I have no idea what your status is now. This might be a technicality, it might be a big deal. You need to talk to a lawyer to find out how to get things corrected.
Click to expand...

Bill, is your response related to Shyboy's question, or you're disagreeing with Sim's answer?
 
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