H-1B -> TN, but got I-140 NIW refused before

L

le04

Registered Users (C)
I am in my 5th year H-1B status. Since I have Canadian citizenship, I plan to apply for TN visa for the first time before my H-1B expires next year. However, I applied for I-140 NIW before and it got refused. Our company lawyer said it showed my immigration intent since I-140 NIW is not only an immigration petition but also self-sponsored. My question is will this lead to a possible denial of my application for TN visa next year?

I read posts here and know some of you have approved I-140 and still renew TN without problem. But my case is a little bit different (denied and self-sponsored in this case). Really appreciate your input on this. Thanks.

Le
 
USCIS has consistently taken the position that a pending or approved I-140 is not sufficient grounds for denying I-140. The fact that your was self-petitionned should not matter, since the I-129 asks if anyone has filed an immigrant petition with you as beneficiary. This would seem to include those filed by the company or self-petitioned.

Add to this that your I-140 was denied, and I see no problem filing for a TN.

So, as long as you did not file I-485 (or it has long been denied), you should have no problem.


In other words, if you had always been on TN, and had filed a NIW I-140, and it had been denied, youwould have still been eligible for TN renewals throughout the process. The fact that you were on H1 and did not even have to think about this changes nothing.

I would however question why your firm is not trying to get PERM/I-140 for you now, before your H1 expires, and especially before you begin your 6th year on H1.
 
nelsona is right - why isn't your company helping you out. I would assume that if you were applying for NIW then you have a phd or something. That would drop you in an EB-2 category. Since that's the case, I believe EB2 is Current and might continue to be current for a while. You could probably have everything done within a year.
 
Thanks a lot for your guys' input. My boss didn't agree to sponsor PERM/I140 for me since he couldn't say no other Amercians can't be found for my position during the recruiting process for labor certificate. No way to get around this.

One more question though, when I apply for TN for the first time next year, in I-129 form, in Part IV, for question "Have you ever filed an immigrant petition for any person in this petition?", should I answered "No", since my employer never file immigration petition for me? Thanks!
 
Your employer wouldn't be able to say that he cannot find another US worker unless and until he doea PERM (that is the whole purpose of PERM).

As to your I-129 question. The employer should put "No".
 
thanks, Nelsona. I see you point. unfortuately my boss is a very strong-minded person (esp. in this case). that's why I had to try self-sponsored I-140 NIW, but no luck.

My parents may become US citizens at the end of this year, I also consider their sponsoring of I-130 (family-based) which will take a long wait (8 years right now). I think I may just keep renewing TNs while that long waiting for I-130.
 
This is unbelievable. It's very evident that your boss merely considers you a commodity. So get another job - he won't care. He probably won't even bat an eyelash or say goodbye when you leave.
 
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