H1b -> tn -> eb2 (nw)

E

elyayo

New Member
This is my sixth year on H1B and I switched to TN. The TN status begins in 9/15

Can I send a I-140 NIW application now or I need to wait until the TN status is valid.

thanks
 
elyayo said:
This is a self petition.
What would happen if I submit the I-485 after my I-140 NIW is approved?
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once your I-140 is approved, you should immediately submit an I-485, an EAD and AP applications. Your file will be recalled from NVC to a TSC or another service center for AOS. NVC will send you a letter requesting if you want to continue with consular processing, to which you will answer "no, i have done AOS". The reason you want to wait until your I-140 is approved before submitting I-485 is that if your I-140 is denied and you have already submitted I-485, then you are stuck with no green card and no ability to get a TN again. Look carefully at my signature to see what i did. Notice that i was issued a new TN status while I had a approved self petitioned I-140 in hand, though i had not submitted I-485
 
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Self-petition or not, I-140 irs not in itself grounds for TN denial, and there is no need to go consular route. File I-485 as soon as ypur TN is appoved, along with AP and EAD, and you will be free a nd clear of TN within months.

Consular will take several months.
 
on the I-140 form you must select AOS or CP. I encourage you to select CP on the I-140 form. Then when the I-140 is approved, just file for AOS with the I-485.
 
One should apply, as you say, for AOS. Why dance around?
 
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nelsona said:
Self-petition or not, I-140 irs not in itself grounds for TN denial, and there is no need to go consular route. File I-485 as soon as ypur TN is appoved, along with AP and EAD, and you will be free a nd clear of TN within months.

Consular will take several months.
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Thank you a lot to gunt and nelsona for your answers.

Wouldn't be better to wait until the I-140 is approved? As far as I understand this is the safest route.
 
Yes. I meant that you should activate your TN before filing I-485, even if your I-140 is approved before then.

Your decision to concurrently file I-485 with I-140 may be a necessary evil if there are quota/backlog issues.
 
elyayo said:
Wouldn't be better to wait until the I-140 is approved? As far as I understand this is the safest route.
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You should wait until your I-140 is approved until your file I-485. The reason to wait is because there is a real possibility your I-140 will be denied. If it is denied AND you had filed I-485, then your TN status is dead and you are not able to restart the TN status. Perhaps Nelson didn't notice that your are filing a EB2 National Interest Waiver petition, which can easily be denied. There is little chance that EB2 NIW based I-485 applications will go into retrogression soon, so there is no need to think about concurrent filing regarding quotas.

My EB1-EA petition was a very similar situation to what you want to do. The safest way to do it is to do exactly like I did. 1) file I-140 with CP indicated on form. 2) renew TN if needed 3) file I-485/EAD/AP immediately when I-140 approved. 4) be prepared for discussions with CBP if you cross a border with the pending I-140 while on TN status (you will prevail in the discussions, but be prepared).

nelsona said:
One should apply, as you say, for AOS. Why dance around?
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The reason for selection CP on the I-140 form is in case of a disaster when trying to re-enter with a TN and pending I-140. Let's say you were trying to re-enter under these circumstances and the CBP official refused you entry, claiming that you had demonstrated immigrant intent with your I-140. The chance is small, but it could happen (and the officer would be wrong), and there is little you can do about. You would be stranded in Canada and unable to file a I-485. But as you had selected CP on your I-140, then when your I-140 was approved you could be processed at the US consulate in Montreal. Just a little backup plan is case of worst case scenario.
 
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In the event of such a "disaster" you would simply request CP, after all, accordingt to your scenario, you have not filed AOS yet.

But since you have foregone benefits of concurrent filing at this point, might as well keep with that philosophy.
 
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you are welcome. definitely do not follow nelsona's advice as it is the advice of someone who has never been through this process. Nelsona's lack of understanding of the finer points of this issue resulted in his terrible advice that you file concurrently - which could easily be disastrous for you.

I repeat "Do Not file concurrently a I-485 with your I-140 EB2NIW petition."
 
Funny, i never told this individual to file concurrently. I told them it was not necessary to stipulate CP onthe the I-140. I told him that there may be other factors that come into play that may FORCE him to file I-485 prematurely.

Get over the sting of being proven wrong gunt, and move on....
 
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