On TN: Travel While H1B Pending

[Noela]

Hi,

Good Morning everyone.

I am a Canadian here in US on TN which expires at the end of July 2007. My employer (a university) wants to apply for an HIB for me.

I am preparing to submit the application next week. Now, I have a couple of questions:

-- Can I travel to Canada while my H1B is pending
-- At the border do i have to let them know that I have applied to H1B, or they would find out themselves?

Thanks very much - MN

 

[nelsona]

You can certainly keep traveling until July 2007 on TN status. This will not affect the disposition of your employer's H1.

However, the change of status from TN to H1 will not be as 'automatic' as if you stayed in US. After your H1 is awarded, you will have to go to the border and re-enter on H1 to activate it, EXCEPT if USCIS ignores that you left US, and issues you an I-797 with the same # as your current I-94. Going to canada is often ignored, because you keep the same I-94 throughout.

But, to be clear, leaving US does NOT mean that you have abandonned your H1 petition -- since it is not your petition. many lawyers incorrecytly claim this. Only your change of status *could* be affected.

Remember too, that the H1 must be in effect by the date your TN ends, or you will be out of status. You do not get any grace period in switching status, like you do for extending status. It is quite possible, since about 100,000 H1's are going to be submitted On April 1, that processing time of all H1 may take a hit. I might suggest premium processing, and sending asap. I assume that the univ is cap exempt (thus able to send next week rather than April 1). While it is better than sending in april, it would have been better sent a month or two ago. Oh well.

If you decide not to premium, then in early July, if you have had no word, I might sugget at that time to either switch to premium, or go to border and get another TN. If you get another TN, then you definitely will have to go to border to activate your H1.

and there is no need to mention any pending H1 when you enter on TN. Your TN is valid for entry.

 

[Noela]

Nelsona,

thanks very much for your detailed response. Certainly, the University would try to do it early next week. The university is cap exempt, hence I hope at least they can finish processing by end of June.

I would be travelling outside North America in July. So I should be prepared to do 2 things:-

-- travel to canada to activate my H1B if it is approved before then
-- travel to Canada to get a new TN-1 if H1B is not approved, so I can use to travel. I don't want to try to re-enter US on an expired TN-1....

is that right?

thanks - MN

 

[nelsona]

If your H1 is approved before you leave, it WILL be active the moment you get it; the I-94 attached to your approval notice will be your new H1 I-94.

I wouldn't make a special trip to get a new TN, if you are going to leave the country before it expires anyways. You can simply get your new TN (or H1 if it is approved after you leave) when you return for your big trip. The airport you land in will be able to process your TN (but you would face the inconvenience of having to carry your TN documentation on your trip).

On second thought, go to canada and get TN at end of june, it will put your mind at ease. You will need to carry a COPY of the TN docs on your trip however, since your I-94 will be taken from you.

Let's hope you get your H1 before then, and forget all this. Too bad your univ wasted all this time preping your H1. They should have done this months ago.