From TN to H1B:

[alexis33]

Hi everyone!

I am currently on TN which expires on July 23. I am changing employer and my new company is processing an H1B but tells me it wont be effective until August 10th.

I would like to stay in the US until August 1st (I need to sign a new lease and move to another state), then go back to Canada and re-enter as H1 on August 10th. Is this ok? Since I am a CAN citizen I suppose I won't be technically illegal for that week, but I don't know. I also wonder if over staying for one week after my TN expires would affect my re-entry as H1B.

Thanks!

 

[simsd]

Not exactly sure about the info you are getting. Unless you will be working for a College, University, non-profit organization or government research facility, all of the H1B's are gone from last year which would qualify you for work this year. Second, you can only apply for an H1B on April 1st of the current year, but it won't be effective until October 1st of that year - so I don't quite understand the part about August 10, unless again you are working for one of the exempt categories I first listed.

There are only about 58,000 H1B's available for those with a bachelor's degree or equivalent and 20,000 for those with a masters. Since April 1 was on a Sunday last year, they received over 120,000 applications between April 2 and 3 to fill the quota. It ended up being a lottery in the end and all the extra applications were returned. So unless you are in the exempt category, then you actually have a different issue.

So assuming you are not in the exempt category your problem is that first you will have to hope that you will win an H1B this year as they will surely all be gone on April 1st. Second, your problem will actually be from the time you start with your new employer to the time an H1B kicks in. Here are the issues:

1. If you don't get an H1B for this year then you can only get a TN - and that's assuming your new job is still in the TN category.

2. If you do get an H1B, and then apply for a TN, your new TN will negate the H1B even though it's only to "bridge the gap". USCIS looks at "last action taken" as your status.

The timing on all of this is tricky. Since you can have multiple TN's, what you might want to do is see if you can get a second TN for your new company now. That will hold you from now until next year at this time. If you are able to get an H1B, then on October 1, your H1B will take over.

Also, were you planning going to Canada and come back to the US for H1B stamping purposes? If so, you don't need to if your H1B I-129 was sent in with a change of status request. If you are going just for a visit, then you will still come back as a TN until October 1.

This is only a discussion forum so you may need to get some legal advise from an immigration attorney because of your timing issues.

 

[alexis33]

thanks so much! I am in an excempt category (Univ).

I thought I HAD to go back and re-enter US under the new status since there is this gap of one week. What do you mean with change of status request? Since I am changing schools I dont think they new Univ can do that or can they? The question is that even if they do there will still be the gap between the experiation of my TN and the H1.

I just wonder if it is ok to stay in the US for that week.

 

[simsd]

So I guess after my first paragraph, everything was jut moot?

Why is the H1B only active August 10 and not before?

I believe when your TN expires you would have a "reasonable" time period to get your affairs in order - say a month. So I don't see how a week would mean anything - especially the fact that you are using that time to possibly move.

When you apply for the new position, it will be for new employment and change of status. The change of status will be recorded by CIS and then you are under the new status. No leaving the country for stamping or anything like that.