From H1B to TD and TD back to H1B ?

L

lvx2011

Registered Users (C)
I am a Canadian professional on one TN right now, my wife is a Chinese citizen on H1B visa. We have to move to a different sate where I am getting a new job starting July 1st ( I have to go to POE to get a new TN for this employment in about 2 weeks). My wife is moving with me together, so she has to quit her current job, but she has not found a new job yet, if she couldn't find a new job before relocation, what are the options in terms of her visa status ? Does she need to transfer to TD first and then transfer back to H1B after she find a job ? If this is what she has to do, can she come to POE with me to transfer her status ? Is it easy to transfer back to H1B ?
Need expert's advise !
thanks
 
Non-Cdns cannot change status to TD at the border. She would need a consular stamp before re-entering on TD. She can however use I-539 to switch to TD from within US, but any departure from US would require consulate visa.

As to switching back to H1 when she finds a job, the firm would file I-129 and all H1 required documants, and she could start immediately (approval not required) by AC21 portability. It would then be best to stay in US until that H1 was approved.

She *might* need a consular H1 stamp if she leaves US, particularly if she has gotten TD stamp in the interveneing time.
 
Thanks for your kind reply. It is a little bit hard for me to fully understand the process. First, do you think my wife for sure need to switch to TD if she couldn't find a new job right after she quits the current job ? Are there any other solutions ? If she does need to switch to TD, when should she file I-539 ? Will she be able to obtain TD through mail just by filing and submitting I-539 form ? Will she need an immigrant lawyer for this ?
My wife doesn't plan to leave US at the present or in the new future， at least not before she gets a new job and new H1B, so that is not an issue.
Thanks
 
When she quits she is out of status. How long she wants to be without status is up to her.

By filing an I-539 the day she quits, she remains in status. No lawyer needed for that. For filing I1-29 to get new H1, most firms would use a lawyer.

Remaining in status is a good idea if one wants to use portability of h1 to restart work immediately.

example

It is permissable to go H1->TD->H1 and use portability (the right to begin work immedaite upon filing I-129 for new H1)

It is not so clear that H1->no status->h1 can use portability, and it would no doubt require a trip to the border (and maybe a consulate) and might require even H1 approval before being able to begin work.

These are questions best asked on an H1 forum.
 
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one more question, my current TN is to dated to June 30, 2008. My new job will start July 1, 2008, I am planning to go to POE to get my new TN 2 weeks before my starting date. Ｉｓ　My wife 's job quitting date the last day at work or the last day of pay ? Ｈｅｒ　ｌａｓｔ　ｄａｙ　ａｔ　ｗｏｒｋ　ｉｓ　Ｊｕｎｅ　２７．　Ｓｈｅ　ｃａｎ　ｏｎｌｙ　ｆｉｌｅ　Ｉ－５３９　ａｆｔｅｒ　Ｉ　ｇｅｔ　ｍｙ　ｎｅｗ　ＴＮ，　ｃｏｒｒｅｃｔ　？　Ｃａｎ　Ｉ　ｇｏ　ｔｏ　ＰＯＥ　ｏｎ　Ｊｕｎｅ　２７　ｏｒ　２８，　ａｎｄ　ｓｈｅ　ｓｅｎｄ　Ｉ－５３９　ｏｎ　Ｊｕｎｅ　３０　？　Ｓｏｒｒｙ　ｆｏｒ　ｔｈｅ　ｆｏｎｔ，　ｍｙ　ｃｏｍｐｕｔｅｒ　ｓｃｒｅｗｅｄ　ｕｐ．．．
 
Her H1 is valid only until she ceases to perform the function for the sponsor for which it was obtained: Last day of work.
 
The following is the Instruction for filing TD status through I-539, just to confirm , after I got my new TN stamp and I-94 form on my passport, my wife can submit I-539 form together with B and C right after she stops working for the current job, it this plan correct ?



I-539 instruction:
If you are filing for an extension/change of status as the dependent of an employee who is classified as a TN nonimmigrant, this application must be submitted with:
A. Form I-129 filed for that employee or a copy of the filing receipt noting that the petition is pending with USCIS;
B. A copy of the employee's Form I-94 or approval notice showing that he or she has already been granted status to the period requested on your application; and
C. Evidence of relationship (example: birth or marriage certificate).
 
Correct, except that I would have her submit it the day she leaves her job, not after.
 
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