Fill H1b gap with TN?

[merrimac]

My situation is this: I'm a canadian citizen. My I-140 has been approved with I-485 pending. I have got my EAD card. My current status is H1b in a public university.

Next week I will land a new job in a company, which has sponsored H1b transfer. However, because of the H1b visa number is not available for companies until October 1st, there will be a gap between my current H1b and the new H1b.

Initially, I thought to use the EAD for the gap and switch back to H1b once the new H1b is approved. Latter I heard that one can never come back once he/she lost the non-immigration status. Since I'm a Canadian citizen and am eligible for TN1 visa, can I use TN1 visa to fill up the H1b gap and switch back to H1b once it's approved? Can I keep my non-immigration status that way?

Another related question is: I applied H1b transfer from my current H1b, but if I use TN1 before Oct. 1st, I will be in TN1 status. Will the new H1b still valid in that case?

Thanks a lot for your comments.

 

[DBEL]

Correction you were eligible for a TN. Once you submitted I-485 you demonstrated immigrant intent and you basically blew off your chances of getting any future TN’s. You can use your EAD as long as you underlying I-485 petition remains pending. I don’t know if you intend on using the portability rules but you would need your I-485 to be pending for more then 6 month (or 180 days, not sure) to do this. If your petitioner withdraws the I-140 then you are at risk of getting your I-485 denied and EAD revoked unless your eligible to portability. Once you use EAD you would need to exit and reenter (after Oct. 1) under your H1B to revert back to H1 status.

 

[TheRealCanadian]

Initially, I thought to use the EAD for the gap and switch back to H1b once the new H1b is approved. Latter I heard that one can never come back once he/she lost the non-immigration status.

That's not true, you just wait until October 1st, leave the US and then re-enter with the H-1B approval notice. With a pending I-485, you have ZERO chance of getting a new TN if the inpsector is on the ball.

Unless you have significant doubts about your eligibility for AC21 portability or have another good reason (like bringing in a spouse) I would question why you needed the H1 in the first place.

 

[merrimac]

Thanks for the comments. My I-140 is based on EB1, so there's no 180 day issue. I want to stay in H1b because I can keep my legal status in case my I-485 got turned down.

One more question. Since I transfer H1b from my old H1b, but I will use EAD before the new H1b is approved. Will the new H1b still be valid?

 

[TheRealCanadian]

My I-140 is based on EB1, so there's no 180 day issue.

Just because you're EB1 doesn't mean you cannot use AC21. (edit: I guess you are self-sponsored EB1 (EA/OR) so never mind.)

I want to stay in H1b because I can keep my legal status in case my I-485 got turned down.

I hear that a lot, but I really don't think it's a serious worry, and I would suggest that you ask yourself why your I-485 would be denied and focus on that instead of wasting time and money pursuing the non-immigrant status route. I-485 denials fall into three categories - USCIS error when an I-140 is withdrawn (and an MTR covers you far more effectively than an H-1B), concurrent filings where the I-140 is denied (and yours is approved, so no worry) or being out of status at I-485 filing or ineligible due to criminal or health grounds.

Unless you have some specific reason to believe your I-485 would be denied, it's not something I'd worry a great deal about.

One more question. Since I transfer H1b from my old H1b, but I will use EAD before the new H1b is approved. Will the new H1b still be valid?

Doubtful. If you work for an entity based on the EAD without a covering H-1B petition, you will no longer be in H-1 status. It won't invalidate the petition (since that is the employer's) but it means you will not be in H-1 status. It's no big deal; if you will be travelling before the EAD expires just present the H-1B approval notice when you re-enter the US to go back to H-1 status.

 

[merrimac]

Thanks a lot, TheRealCanadian.

My I-140 was approved a year ago and right, it was self-sponsored EB1 (EA).

I don't have particular reason to worry about I-485 being turned down. Just a little over cautious.

I did not file Advanced Parole. Will I have trouble if I want to leave the States for a few days? People say once you leave the States without AP you abandon you I-485 application automatically. Is it true?

 

[TheRealCanadian]

I did not file Advanced Parole. Will I have trouble if I want to leave the States for a few days? People say once you leave the States without AP you abandon you I-485 application automatically. Is it true?

Since you have a valid H-1B approval notice, you will be permitted to re-enter the US without AP.