GC from TN Visa through EB3

SS0033

SS0033

Member
Hi Everyone,

This might be a repetitive question but i'll make it a little specific with details.

I have one Immigration lawyer telling me that H1B is the way to go and another lawyer saying that i don't need H1B for GC.

I have TN since April 2016. I am Canadian citizen but i was born in India and my wife is a born Canadian. My family stays in Canada and i travel back and forth and my wife does not have a TD visa.
I applied for H1B in 2017 lottery and mine was not picked. My lawyer said it was the only way to go.
I just came across another lawyer who says i can get GC through EB3 (don't qualify for EB1 and EB2).

Que 1: What will be the timelines if i start the process, as my TN expires in April 2019 ?
Que 2: What are the chances of getting the TN visa renewed if i am not through with the process?
Que 3: Is there at any point i might not be able to travel to Canada (or other country) in the process?
Que 3: My wife is a born Canadian. Can i switch lines to Canada instead of India?
Que 4: If at any time i loose my project but i am still with my employer, will that effect the process?
Que 5: Looking at the current timelines, how long will the process take? (WA/AZ state)


Thanks in advance for all the inputs.
 
First off, the lawyers who says you need an H1-B are incorrect.

1. Your TN deadline doesn't really matter. Once you file I-485, you will work under EAD. If you cannot yet file I-485, then you are still eligible for TN renewals.
2. 100% if you have not filed I-485. 0% if you have, but you will not then need TN, you will have EAD.
3. Only between the moment you file I-485 and you receive your AP (I-131) which allows travel, you will need to remain in US. ALL I-485 applicants (if not on H1-B or L status) have this issue for 2-3 months. It isn't much of a hardship.
3. Yes, because your spouse is Cdn-born, you can take advantage of cross-chargeability, which would result in you and her being considered Cdn (not Indian) for EB3 immigration purposes. With that, your wait time would be considerably less than for an Indian national. Both you and spouse would have to file I-485 at the same time, which would require you both to be in US for that 2-3 month period.
4. Your GC sponsorship is never based on your current employment, it is based on the promise of the sponsor to hire you after you have your GC.
5. I'll let you figure that out. Only the right to continue on TN up until filing I-485 is a true "TN issue". if you need other information about the GC process, you should ask on those forums.

The key is not allowing your sponsor to be misled by an unknowledgeable lawyer that you must wait until you get H1-B to proceed for Gc. You should have already filed PERM and I-140 by now, instead of waiting for an illusive and unnecessary H1-B. There are enough accounts on this forum to put that myth to rest.

And, your family will need to move to US for the I-485 filing stage, unless you choose to have you r case done at a consulate (Consular Processing) which although not typically advised, may be better in your case.
 
nelsona said:
First off, the lawyers who says you need an H1-B are incorrect.

1. Your TN deadline doesn't really matter. Once you file I-485, you will work under EAD. If you cannot yet file I-485, then you are still eligible for TN renewals.
2. 100% if you have not filed I-485. 0% if you have, but you will not then need TN, you will have EAD.
3. Only between the moment you file I-485 and you receive your AP (I-131) which allows travel, you will need to remain in US. ALL I-485 applicants (if not on H1-B or L status) have this issue for 2-3 months. It isn't much of a hardship.
3. Yes, because your spouse is Cdn-born, you can take advantage of cross-chargeability, which would result in you and her being considered Cdn (not Indian) for EB3 immigration purposes. With that, your wait time would be considerably less than for an Indian national. Both you and spouse would have to file I-485 at the same time, which would require you both to be in US for that 2-3 month period.
4. Your GC sponsorship is never based on your current employment, it is based on the promise of the sponsor to hire you after you have your GC.
5. I'll let you figure that out. Only the right to continue on TN up until filing I-485 is a true "TN issue". if you need other information about the GC process, you should ask on those forums.

The key is not allowing your sponsor to be misled by an unknowledgeable lawyer that you must wait until you get H1-B to proceed for Gc. You should have already filed PERM and I-140 by now, instead of waiting for an illusive and unnecessary H1-B. There are enough accounts on this forum to put that myth to rest.

And, your family will need to move to US for the I-485 filing stage, unless you choose to have you r case done at a consulate (Consular Processing) which although not typically advised, may be better in your case.
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Thank You for the quick reply.

Regarding the I-485, does my wife needs to be on TD visa or can she be in US for 2-3 months as a visitor ?
 
If she qualifies as a visitor (ie. home in another country, etc) , she can be on B2. However, she obviously qualifies for TD status, which she can easily obtain at the border anytime she crosses. She does not need a visa for TD because she is Cdn, just like you don't need one for TN. You both get entry status with I-94 card. it is best f you are in US for at least a month before you file I-485.
 
nelsona said:
If she qualifies as a visitor (ie. home in another country, etc) , she can be on B2. However, she obviously qualifies for TD status, which she can easily obtain at the border anytime she crosses. She does not need a visa for TD because she is Cdn, just like you don't need one for TN. You both get entry status with I-94 card. it is best f you are in US for at least a month before you file I-485.
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Thank again. I'll get the process started ASAP
 
@nelsona Can you recommend a lawyer who can help start the initial process?

What will be the timelines to initiate PERM all the way to I-140?
I heard we got to run advertisement for 3 months and it takes 9-12 months to get the PERM approved. Is that right?

Also, can i use anything from my existing H1B application? like the advertisement what was run
 
As I said, any PERM,I-140 and AOS/CP questions shuld be asked on other forums, not here.

And it is your firm that MUST do the PERM and I-140, so they will use their lawyers.
 
Hello Mister said:
I didnt understand your Q here: "Also, can i use anything from my existing H1B application? like the advertisement what was run". There are no H1 advertisements
Click to expand...

I meant, is the PERM process for H1B same as EB3?
I applied for H1B this year and can i use that PERM process or should we start from scratch?
 
H1B is a work authorization. EB3 is the employment-based category that you use (if applicable) when filing your GC application. I'd suggest going through the link from curiousGeorge to understand the different steps in the immigration process.

The advertisements used in PERM are very different from an advertisement an employer might have put out in a newspaper or online to fill a vacancy in their organization (against which you got hired)
 
The process for H1-B, is known as labor conditions application (LCA), and technically doesn't even need a advertisement. PERM used for EB green card process is another name for Labor Certification (LC), which is completely different, as Mister said.
 
nelsona said:
First off, the lawyers who says you need an H1-B are incorrect.

3. Yes, because your spouse is Cdn-born, you can take advantage of cross-chargeability, which would result in you and her being considered Cdn (not Indian) for EB3 immigration purposes. With that, your wait time would be considerably less than for an Indian national. Both you and spouse would have to file I-485 at the same time, which would require you both to be in US for that 2-3 month period.

Nelson,

Quick question, is the above point valid if a child ( still a minor ) was born in Canada, or does it have to be the spouse.

Thanks.
Click to expand...
 
nelsona said:
First off, the lawyers who says you need an H1-B are incorrect.

3. Yes, because your spouse is Cdn-born, you can take advantage of cross-chargeability, which would result in you and her being considered Cdn (not Indian) for EB3 immigration purposes. With that, your wait time would be considerably less than for an Indian national. Both you and spouse would have to file I-485 at the same time, which would require you both to be in US for that 2-3 month period.

And, your family will need to move to US for the I-485 filing stage, unless you choose to have you r case done at a consulate (Consular Processing) which although not typically advised, may be better in your case.
Click to expand...

@nelsona
Regarding the step where my family have to move to US for I-485 filing stage, can you please elaborate as to why is it required?
I am trying to wrap my head around the below scenario.

Scenario:
I am in Seattle and my family is in Vancouver, Canada. They can come over and we can initiate the I-485.
Lets say they leave US and drive back to Vancouver.
As per my knowledge, the EAD arrives by mail and from there on we are good as i can take the EAD across the border and bring my family back to US as required.

Is there a point in the I-485 process where my family has to come back to US if they are in CAN?


Following is from the write up from one of the thread:
" 5) Do not leave the United States between step 4 and step 7. You can continue to work using your TN, but you cannot travel using your TN, nor can your TD dependants travel using their TD. Never apply for a new TN ever again. If you leave between steps 4 and 7, your I-485 will be considered abandoned, and you won't be eligible for a new TN. Basically if you leave at this point, you can't come back, unless you get some other kind of visa, (H1, L1, etc) and you'll have to re-file your I-485. Bad...bad...bad… "
 
If your family leaves without EAD/AP, then AP will be denied. EAD/AP takes up to 3 months to arrive hence the reason for them to stay. Otherwise, they will be out of status. If you are going to pursue GC, then why do you want to risk it just for 3 months?
 
Hello Mister said:
If your family leaves without EAD/AP, then AP will be denied. EAD/AP takes up to 3 months to arrive hence the reason for them to stay. Otherwise, they will be out of status. If you are going to pursue GC, then why do you want to risk it just for 3 months?
Click to expand...

I am just weighing my options as I am planning a kid and it might be around that time.

But when we leave US by car, we don’t deal with US custom and it’s only Canadian custom.
We will be denied entry to US if we come back without EAD/AP. Till then, no one knows they are out of US.

I will defiantly be in US, but just getting educated if something comes out of the blue.
Got to be ready for Plan B.
 
Just to clarify Misters response. If you leave US after filing I-485 (and you must be physically in US to file I-485) and before your AP is approved, your I-485 application is abandoned (yes, they will know). The EAD and AP are then cancelled, because the I-485 is dead.

AP is the document which allows travel for those who are adjusting their status. EAD allows work. They are not interchangeable. But the AP is the one you need to prevent your I-485 from dying if you leave the country.
 
Thanks @nelsona and @Hello_Mister for the input.

I will be starting the process this week sometime.
Considering that my TN expires in April 2019, i think i will have to renew it once (Also apply for TD for wife and Kid).

I guess, we can renew the TN 6 months before it expires.
I was thinking of driving to the border and getting it done after the PERM is approved and before the I-140 (Assuming it will take about a year for PERM).
 
Doesn't matter. They will not deny TN even if you have an approved I-140. That is by regulation. The key is making sure you have about 6 months left on existing TN at the time you file I-485, that is all. No other timing related to TN matters.
 
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