COS Questions

Hello Mister

Active Member
Hi,

I am currently in TN status and got selected in the H1b lottery this year. The petition was filed with COS (which was approved) and I was sent the same I94 number as my current TN. Now the lawyer has given me two options to change the status of my dependents to H4 from TD:

1) File I-539 if there is no plan to travel outside the US (could take at least 2.5 months to process) OR
2) Plan a trip in a way such that the re-entry is within 10 days prior to Oct-1st and request for H4 status at POE in which case I-539 would not be necessary

The queries I have are:

1) If the dependents are traveling by themselves and re-entering (say) on Sept-24th, would they only require a copy of my approved I-797 and I-94 to be granted H4 on entry at the POE? Any issues since technically, I would still be in TN status. I am also assuming they do not have to go to a US consulate
2) If they are unable to travel outside the US by Oct-1st, can an I-539 be filed for them after Oct-1st? or does it absolutely have to be before Oct-1st and they will be in-status since there is a pending petition?
3) From what I have read, with COS, the status will change automatically from TN to H1 on Oct-1st without the need to travel outside the US for visa stamping:
a) do Canadians need to get the H1b visa stamped at a US consulate in Canada OR
b) whenever they leave the US (and re-enter), its automatically considered stamped at the border​
4) If I am traveling with my family and re-enter on (say) Sept-24th, do I request the official to admit me in H1 or TN? Or is it probably better to avoid travel until H1 kicks in to avoid TN/H1 visa confusion?

Thanks in advance for the help.
 

nelsona

Registered Users (C)
Your h1 status and their H4 statuses are separate.

As you correctly point out, you need do nothing in order to switch to h1 on October 1st, regardless of whether you leave US or not any time in between, including the 30th of september. You are in TN until that date. passport stamping ins never needed. You have your I-94. Consular visas is absolutely NOT required fopr any Cdns in h1 or h4.

Since apparently your firm did not also file I-539's for your family, indeed they will need to do "something" by october 1st.
Your sponsor should have submitted an i-539 as a courtesy for your family when you applied for H1.
So, yes, you must either file an I-539 before October 1st, or they should go to the border sometime in the vicinity of October 1 (a little before or after quite frankly doesn't matter). YOU do not have to go. They need only bring your I-797, or if in October, your I-94, and a current paystub, and proof of relationship to you, and their Cdn passports of course.

To cover your Q's:
1. Correct.
2. To file they need to do this while in status, so it MUST be before 10/1. they woill be in pending state if filed before that date.
3. No stamping is required if you have an I-94 issued internally. No consulate is needed for Cdns. Your I-94 is valid after 10/1 whether ort not you travel outside US, or whether or not you also get your passport stamped.
4. They will admit you on TN, and admit them on H4. TD or H4 really doesn't matter to the officer, but YOU need TN until 9/30.
 

Hello Mister

Active Member
Thank you for the info Nelsona. Infact the sponsor did tell me they will/can add my dependents on my H1 petition. Due to some personal reasons, my dependents could not have stayed in the US for the entire month of April. My understanding is that while I539 is being processed (with COS), one cannot leave the US.

Appreciate the clarifications.
 

nelsona

Registered Users (C)
The problem now, is that since their I-539 is not being processed with your I-129, it will not be processed with any speed 94-5 months), and I would not forced them to stay in US just to get this COS approved (just like you didn't force them to stay in April). Quick approval only happens when it's tied to the underlying work request.

Just for clarity, I-539 IS a COS request, nothing else. Your I-129 is a work authorization petition, and the option of a COS was requested for it as well. That is a slight distinction. You could leave US without affecting the i-129 (the COS may or may not have been denied, see below).

Personally, I would have had the firm submit their I-539 with your H1 petition, and see what would have happened, many times these get approved even when the beneficiary leaves the country, especially if only to canada.

So, looks like now they will be taking a trip in late September/ early October.
 

Hello Mister

Active Member
Hi Nelsona...you are right. In hindsight, that would have been the best approach. Tying them down for several months for I539 approval is probably not the best approach either. I will just have them travel to Canada.
Btw, another thought....do you think if I were to go to a local CBP office (instead of going all the way back to Canada), would they be willing to change the status to H4?
 

nelsona

Registered Users (C)
Absolutely NOT. H4 is an entry status. It can only be granted by entry, or by filing an I-539. Local offices are not permitted to process I-539s under any circumstance

Another advantage of filing their I-539 would have been that they would get the full three years that you got. Now, when they go to the border, they will only get what is left on their current passport, upto 3 years.
 

Hello Mister

Active Member
Wanted to request one more clarification.... My new h1 i94 has the same number as the tn i94. What do I do with the tn i94 on October 1st?
 

nelsona

Registered Users (C)
It is expected that it have the same number, but even if it didn't, the answer is the same: on 10/1 take it out of your passport, keep it in your personal files (along with a copy of all other I-94s you ever get) t oprove continuous status. Put the H1 version one in your passport, and go to your HR to update your I-9.
 

Hello Mister

Active Member
Got it...i had read somewhere these need to be sent back to cbp...seems like thats not necessary unless specifically asked...
 

nelsona

Registered Users (C)
The only time you need to send an I-94 to CBP, or better, leave it with a Cdn officer as you leave the country, is when you are not returning to US, and you want it on record that you gave up your work status document in a timely fashion. It doesn't apply to those whoa re changing from one work stataus to another, or adjusting to Green card.
 

Hello Mister

Active Member
btw, the law firm came up with a 2-part solution:

1. file I-539 before Oct-1st and/or
2. plan to travel towards end of Sept and return after Oct-1st
 

nelsona

Registered Users (C)
Either will work; of course, you cannot do both. 1. it is not essential that they wait until after Oct. 1. If you were living in canada and had an H1-B approval, they would admt you in H1 in late september. Same principle would apply here for your H4 dependants..
.
 

Hello Mister

Active Member
Thanks Nelsona...the family is in the US currently in TD status. can i request clarification on two more items?
  1. Situation-1: lawyer files for I-539 before Oct-1st. Family travels to Canada in Sept and returns after Oct-1st. Since they left the US, I-539 is considered abandoned. Upon entering, they request for H4 status (with the necessary proof that i am in H1 ... my status will change to H1 automatically on Oct-1st). Filing I-539 is just a backup in this case in-case family is unable to travel back to Canada and will keep them in status, correct?
  2. Situation-2: lawyer files for I-539 before Oct-1st to keep everyone in status. What happens if the family travels to Canada after Oct-1st while I-539 is still pending? Can they not request H4 upon re-entry?
 

nelsona

Registered Users (C)
1. yes, it is abandonned as soon as you leave, but keeps them in status until they leave.
2. They must apply for entry in H4 at the border. As I said, they can even do this shortly before Oct 1.
So, if they insist on filing I-539, it is pointless to do so before last week of september. If you decide to go to border to get H4, it is pointless to do so before last week of september.

Are you getting the picture? Enough time spent on this. Come back in september to discuss.
 

Hello Mister

Active Member
absolutely getting the picture (thanks!). Will delay filing for I-539 (if necessary) until September. I will do so only if i am unable to get the family to travel towards the end of Sept. If they travel (say) in Nov and the I539 hasnt yet been processed, they can simply ask for H4 upon re-entry and I-539 can be deemed abandoned.

Will get back to this thread in early Sept again (thanks Nelsona)
 
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