Question of TN1/ or TD petition with self-filed 140 pending

D

DoeJohn

Registered Users (C)
I am a Canadian and have been on TN1 for the past 5 years or so. Till October 1st 2009, my status was changed to H1B by a company here in USA (I actually had both TN1 and H1B from this employer in 2009).

Unfortunately, I was laid off by this employer at end of this October. To make things even more complicated, I filed NIW 140 through a lawyer on my behalf (not via ex-employer) in July 2009. I have had some interviews including f2fs and expect to have a firm offer on the horizon but can not be certain. Majority of the future employers are actually agencies who will not be able to sponsor H1Bs. In other words, I am still in USA and considering to change to a valid status soon depending on a number of factors (I realize that I am out of status for a bit over a month now). My key concern is: Will I have problem getting a new TN1 for a pending new employer with my own I-140 petition at the border? Is it worth the risk trying to get a new TN1 in the event of no H1B sponsorship from a pending employer?

If an agency offers me a job soon (not sponsoring H1B), it seems that seeking TN1 is the only option left. If there is potential risk of getting denied at the border due to my own I-140 petition, does withdrawing my pending NIW 140 application allow me to obtain new TN1 with no issues?

My wife currently works for a US firm with her own TN1 status. My 2 kids were TD and H4 under me in 2009. Should I get my 2 kids switch their status from H4 to TD to be in a valid status (dependent on my wife's TN1)? What valid status should I switch myself to (if my job hunting results are bad prior to Christmas): TD, or B2, pros or cons though I expect a firm offer is coming in the upcoming 2 weeks?

Any advice on getting me and my 2 kids out of the current mess would be greatly appreciated. Thanks a million!!
 
An I-140, even a self-petitioned one, is not an automatic stop to TN (or TD), although if it had been made thru a sponsor, there would be that extra degree of separation. They may not be able to determine at the border whether your I-140 was NIW, nor that it was self-petitioned (not all NIWs are self-petitionned)

Withdrawing the I-140 proabably won't help much, since if they link you to it, they will ask about it whether its withdrawn or not. And they will correctly presume that you will immediately re-petition I-140 anyways.

In any event, you don't have much choice. You aren't in H1 aymore, and it doesn't look lioke you will be anytime soon, so you need to get into a status, B2 is probably not available to you since you live in US, plus it's too late to do a mail-in for any status. You need to go to border and enter on TN if you get job REAL soon, or TD (if they will let you -- TD (and B2) has the same restrictions on immig intent as TN).

I'd go by myself, if you get my drift. Or take the kids if you want some sympaty -- go on christmas eve even.
 
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Thanks very much for your quick response, nelsona!

Can I apply for switch to TD through online submission along with my 2 kids' application in 1 shot? It would cause some extra inconvenience to take both them with me to the border.

How likely is my TD denied in my scenario per your experience?

I am waiting for a big firm's final decision on acceptance in the upcoming 2 weeks for sure - This firm would consider sponsoring H1B; if they do, would my case be expempted from the quota limitation since I had H1B in 2009. Should I wait for 2 more weeks to take the risk of going to the border to get TD?

I truly appreciate your advice. Thanks!!
 
You can't apply I-539 online because you are not in status. Thus you cannot change status without going to the border.

If you get a new h1, you do not need quota, but, unless you get a status beforehand, you would need to wait for approval to start work. If you had a legal status now (TN, TD, or B2) you could start immediately upon submission of I-129 by H1 porting rules.

So, you are going to have to go to the border, either to get TD because you found no job, or TN because you got TN job, or H1 because you get H1. If you go get TD now, then you would be able to start at H1 job immediately.

I don't see a problem getting TD at the border. You simply state that you lost your H1 job and that your wife has TN (Take copy of her I-94). But you never know, and as I said, you still have no choice.
 
Nelson, you are super; I truly appreciate your quick advice.

One more minor question: My whole family is planning to go to Vancouver for Christmas and have my TN or TD and my 2 kids' TD changed on the way back to USA.

My wife's current TN1 and I-94 are valid for up to sometime in 2012. Does she still need to bring support letter from her current company in case of some issue at the border (airport)?

Thanks so much for your professional advice!!!
 
She is fine. Yours and your kids will be the tough ones.

If you do get TN, make sure the kids tie their TD to your wife's TN (which is probably how it should have been all along to avoid this mess). that way when you change again it won't affect them.
 
TN1 -->H1B or TD -->H1B

Finally, I have landed an offer prior to Christmas. The good thing is that the employer does sponsor H1B and even GC petition. I would need to start the new job right after the new year.

Due to my current (out of status) status in US, what would be the safest way for me to get back in a valid status and then get into H1B: With my new offer, get a TN at border or with my wife's TN1, get a TD at border, then ask the employer to file H1B (I have no quota limitation since I had it in 2009)?

Also, could I go to US/Mexica border (in San Deigo) to get the TN or TD?

Is there a way for me to go to H1B directly (from current out of status) without too much risk?

Thanks very much for any advice beforehand!!
 
Personally, I would simply file for H1 (premium) and then go to border to activate it once approved, and then start work. You'd have been out of status for a few weeks. I wouldn't be travelling though.

But if you feel you need to travel...

If you and firm are ready to have you start work, then go get TN on your way back, start work and then file I-129. You would not need premium processing at this point.

Or, if they feel better skipping TN, get TD on way back, and then file I-129; you can start work immediately without needing to wait for approval. No premium needed.

In any event I would not bother doing anything before coming back from holidays.
You have lots of choices, and no downside.
 
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Thanks very much, Nelson for your responses.

For whatever reasons, my new employer's legal counsel believes that they can file H1B for me while I am here in USA without using premium process. They stated that I could start working for the new employer upon notice of my H1B petition. I was told that I more likely would need to travel to the border to have H1B approval activated.

If I still consider tie my 2 kids with my H1B and get them H4, do they need to go with me to the border to have their H4 activated? If they do, I would tie their status to my wife's TN1 (switch from expired H4 to TD).

Thanks very much for any advice!!
 
In my opinion, one can only use H1 portability to start work immediately only if one is currently in status. I'm pretty sure that that is the correct interpretation of AC21 (the law which allows immediate H1 work pending approval).

It does not have to be H1 status, but it must be a status.

Does your legal realize that you are out of status?

For anyone, incluing kids to change status, the need to either file I-539 or go outside US. The primary does not have to go.
 
If my old employer has not revoked my H1B for whatever reasons, could this be possible?

I did tell them the fact that I left the company at what time. I am double checking with the lawyer affiliated with the new employer and will see what he says.

Thanks, Nelson!!
 
Revokation of H1 is not the issue. Your legal status is.

Even if an employer correctly "revokes" your h1, you are still eleigible for H1 immediate porting, but you still need a status to so.

In any event, your firm isn't going to apply until next week, so why not wait, go on vacation, all enter on TN/TD and then strat work whe nthe paperwork is filed -- that I see no problem with.
 
Is LCA Certification required for H1B transfer in my case? For whatever reasons, I obtained my TD and submitted to the lawyer; however, they are telling me that they have to wait for my LCA to be certified (Taking 7 days. They submitted last week) to submit my petition.

The consequence of this is that I will have to delay reporting to work for the new employer.

Is this something new or just I don't understand the whole process at all.

Thanks very much for your help!!
 
Of course, LCA is required of every H1 petition, be it new, or renewal, or 'port' (proof once more that there is no such thing as H1 'transfer').

The ability to start work with a new H1 using porting has always required the actual filing of H1 (I-129) which in turn always requires a previously-submitted LCA. [Note, there are certain times during the year when one is permitted to file I-129 with the LCA pending (ie. sent more than a week prior) -- this does not appear to be your case -- but it must at least be submitted to DOL before I-129.

So it's: find job -> file LCA -> get LCA approval (or wait 7 days)-> be in some legal status -> Submit I-129 -> then begin work.
 
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