TN change to H1 question, do I need to get back to canada to get it?

[hyuan71]

my TN expires in July 28 and I am applying for a change of status to H1 on April 1. my layer told me because of the earliest date for H1 is Oct 1, on that date my current TN already expired.CIS will ( or could ) reject the change of status and I have to leave US to get H1.
and even if I file for TN extension, the earlist date I can file is March 28, only 3 dates before H1, I can't get a receipt NO to include in the H1 application, so the change of status will still be rejected. ( because TN is in NSC H1 is in california).

I don't want to get out US now before I already have PERM certified and don't want to risk being denied as 'immigration intention' at the border.

I am wondering if this is true? did anyone have the same situation before? and if I do have to leave US, what is the chance of being denied as 'immigration intention'?

Thanks.

 

[curiousGeorge]

Unitednations is right on the policy, but the date was even futher back than 2005. Many people have successfully gone from TN to GC without ever changing to an H1b along the way. Here are some pertinent legal quotes:

"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)).

"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."
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)