TN - H1B: Dependant and Travel Issues

[Noela]

Hi,

I have been in the US for the past 3 years on TNs. Currently, I am on another TN teaching at a University. It expires in August 2007

My employer (university) wants to sponsor me for a green card, but they want to go through the H1B route.

Now, I am about to apply for an H1B. Their plan is to proceed with labor certifcation (perm) application once the H1B is approved, hopefully early next year.

(1) if I put in my H1B application, does it mean I can't travel out of the US until I hear from them ? (Note, I still have a valid TN)

(2) secondly, does the H1B application invalidate the TN?

(3) thirdly, i have a spouse in my home country (Africa). Can I include her as part of the H1B application. She has never been to Canada or US? Will it complicate things, or actually facilitate or speed up our re-union?

Thanks very much for you attention...

MN

 

[gunt]

1) filing the H1-B has no bearing on your TN. As long as you have a valid TN, no matter that you filed the H1-B, you can leave and enter the country as well as continue to work.
2)Even after your H1-B is approved, you will still be in status as TN until one of the following happens i) you fill out the employer's I-9 with your H1-B, ii) you enter the country using the H1-B, or iii) your TN expires and you automatically roll onto your valid H1-B.
3) you can and should include your spouse on the H1-B petition. She will be granted the H-4 visa and will have to go to the consulate in her home country to have the visa issued and stamped in her passport. Having your spouse on the petition is smart because, then when you apply for a greencard, you can include her on the petition as well and she won't have to go to the consulate as she, like you, will do Adjustment of Status without having to leave the USA.

One point to be aware of is that your spouse will not be able to work after she enter the US on her H-4 visa. However, once you file for a greencard, she will be issued an Employment Authorization Card allowing her to work.

 

[TheRealCanadian]

Now, I am about to apply for an H1B. Their plan is to proceed with labor certifcation (perm) application once the H1B is approved, hopefully early next year.

This is unnecessary delay that can doom you for YEARS because of priority date retrogression. Your employer should file the LC NOW. Once the LC is appproved, they can apply for the I-140 and H-1B simaltaneously.

if I put in my H1B application, does it mean I can't travel out of the US until I hear from them ? (Note, I still have a valid TN)

No, leaving the US will merely cancel the change of status when the H is approved; you will need to leave the US before your TN expires and then immediately re-enter on the H-1B.

secondly, does the H1B application invalidate the TN?

No.

Can I include her as part of the H1B application. She has never been to Canada or US? Will it complicate things, or actually facilitate or speed up our re-union?

You don't "include" a spouse on an H-1B application, although if they ask for biographic data you should include her if asked. Once your H-1B is approved, she should take a copy of your approval notice, I-94 with "h-1" on it and probably copy of paystubs and obtain an H-4 visa in her home country.

 

[TheRealCanadian]

your TN expires and you automatically roll onto your valid H1-B.

This is untrue and extremely dangerous advice. If the TN holder leaves the US and re-enters before the H is approved, the COS portion of the H petition is automatically abandoned.

There is no such thing as an "automatic" change of status. In your circumstance, once the TN expired the alien would be illegally present and accumulating time towards the 3/10 year bars, despite having a valid H petition on their behalf.

 

[gunt]

There is no such thing as an "automatic" change of status. In your circumstance, once the TN expired the alien would be illegally present and accumulating time towards the 3/10 year bars, despite having a valid H petition on their behalf.

This is untrue. My spouse has personally had a valid TN and petitioned for an H1B. The H1B was approved and my spouse did not go to the border until 1 year after it was approved. There were no issues as my spouse was in legal status the entire time. This is the whole essences of COS.

 

[TheRealCanadian]

This is untrue. My spouse has personally had a valid TN and petitioned for an H1B. The H1B was approved and my spouse did not go to the border until 1 year after it was approved. There were no issues as my spouse was in legal status the entire time. This is the whole essences of COS.

It's important to note that this assumes that a COS has taken place. If you leave the US before the COS is approved, then it is automatically abandoned and when the H petition is approved, non-immigrant status does not change. If you don't leave the US, then the COS will occur immediately upon approval.

Under no circumstance will there be an automatic change of status on TN expiry.

 

[Noela]

Thanks very much

Hi folks,

thanks very much for your advice...so the general consensus is that I shouldn't leave the US until my H1B is approved.....?

That seems to be the consensus....

regardes, MN