I-140 submission

[deland70]

Hi guys!
I need your advice desperately. My labor cert just got cleared and my lawyer wants to submit the I-140 right away but he thinks I need to convert my TN to H1B because in his legal opinion, the next time I renew my TN,it will not be approved as we gonna put YES to that question where the employer has filed an immigrant petition on my behalf. I tried to explained to him that the submission of I-140 will not prevent me from gettin TN,but i-485, but he so adamant about it.

Has anyone from this forum ever submitted I-129 with YES checkmark on that question"ever filed a petition for this employee"? If you did, what's the outcome of it? Is It approved or denied of a new/renewed TN?

Please share your experiences. Thanks.

 

[TheRealCanadian]

I tried to explained to him that the submission of I-140 will not prevent me from gettin TN,but i-485, but he so adamant about it.

Then just tell him NO, and that you will live with the consequences.

Has anyone from this forum ever submitted I-129 with YES checkmark on that question"ever filed a petition for this employee"? If you did, what's the outcome of it? Is It approved or denied of a new/renewed TN?

While I personally have not done it, I know of several individuals dating back to the late 1990s who did so for multiple TN renewals without issue.

 

[curiousGeorge]

Has anyone from this forum ever submitted I-129 with YES checkmark on that question"ever filed a petition for this employee"?

I did.

If you did, what's the outcome of it? Is It approved or denied of a new/renewed TN?

My TN was approved, so was the I-140, and so was the I-485. I now have a GC.
I work with 10 people who have done the same thing. I also have met about 15 other Canadians who have done it as well.

You have to answer YES. An immigrant petition has been filed for you, but it has not been filed BY YOU. There is a huge difference, and when they look at your file they will realize that you're ok to get your TN approved. You CANNOT lie, or else you have a much greater chance of getting denied. They can easily verify that your company has a pending immigrant petition with your name on it and catch you in the lie.

 

[curiousGeorge]

I tried to explained to him that the submission of I-140 will not prevent me from gettin TN,but i-485, but he so adamant about it.

Did you show him these quotes? If so, and he is still adamant, tell him you may need seek alternate council since he may not be experienced enough in TN to GC matters. He can look them up on AILA if he's a member. If he's not even a member, then run, do not walk, to another lawyer.


"The fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay [under TN status] if the alien’s intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien’s intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore, while it is our opinion that a TN nonimmigrant may apply for readmission in the TN classification, if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual’s application for admission as a TN nonimmigrant may be refused."
Letter from Yvonne M. LaFleur, Chief, INS Business & Trade Services Branch
(posted on AILA InfoNet as “I-140 Filing Not Dispositive for TN” (June 18, 1996)).

"After considerable discussion between the Nebraska Service Center and AILA's NSC Liaison Committee, the NSC now indicates that the filing of an immigrant petition is simply one factor to consider in the adjudication of a TN extension, and should not automatically result in a denial. The NSC, which has exclusive jurisdiction over TN applications made on Form I-129, had previously indicated that NSC adjudicators were being told to deny TN applications if an I-140 immigrant petition has been filed on the individual's behalf. The basis of the denial had been that the individual no longer has nonimmigrant intent."
AILA InfoNet, “NSC Backs Off I-140/TN Policy Change” (posted on AILA InfoNet at Doc. No. 02111431 (Nov. 14, 2002).

As one court put it, “there is a great difference between wanting to stay and intending to stay and proof of a desire to stay is not proof of an intent to stay.”
Choy v. Barber, 279 F.2d 642, 645-46 (9th Cir. 1960)

"a desire to immigrate to the United States, should opportunity arise, is not inconsistent with nonimmigrant intent"
citing Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957)

 

[deland70]

To my fellow canadians(REALCANADIAN AND CURIOUSGEORGE)

I appreciate all your prompt responses. Now, I have the guts to tell my lawyer that I am fully convinced that my I-140 application has nothing to do with my TN renewal...I will show this forum to him so that he will realize he's totally wrong.

Regards

 

[DBEL]

I wasn’t comfortable checking yes so I filed I-129 a few days before I-140. They both ended up with the same receipt date (129->VSC, 140->NSC) and both got approved.

By precaution my I-140 stated that I wanted to get my visa in Montreal but I filed AOS a few weeks ago.

It almost makes sense filling I-129 very early since it’s taking close to 6 months nowadays.

 

[curiousGeorge]

I wasn’t comfortable checking yes so I filed I-129 a few days before I-140.

In my scenario, my I-140 took 9 months to get approved. by the time the I-1485 was about to be filed I needed to get a new TN prior to filing the I-485 just in case the EAD didn't come before my TN would have expired.

In retospect, if you look at my dates, I really didn't need to get that last TN, since my EAD arrived about a month before the old TN expired, but I did it as a precaution, since the dates were so close. These days it a crap shoot, and EADs are taking longer to get approved.