TN -> H1b draw coming up, I140 will probably be filed this summer; Travel plan advice

[voz16f]

Hi,

I currently on TN status under Mathematician category, with I94 valid until late 2028. Company submitted PERM last May, likely to have PERM approval this summer (July-Sep). Company also willing to sponsor for H1b visa this year and entered me into the lottery. My wage level is most likely to be in Level III, so decent chance of getting the H1b lottery this time around.

I plan to travel late April to early May. If I'm selected for H1b lottery, the plan is to return to the U.S. on TN status, have the H1b COS filed ONLY after I entered into the U.S; and file for I-140 later this summer (cannot file I485 as I was born in a country with long backlogs).

Question is if my company filed H1b and I-140 within 90 days of TN admission, would that induce higher risk of RFE. Knowing that there will be H1b and I-140 filed by my company, would entering the U.S. with TN be considered misrepresentation or intent? Or is there any chance of potentially being denied entry because of reasons listed above? Will this trip have lasting impact on my immigration status or potentially on if H1b can be approved? I have been holding TN status for 3-4 years, and have travelled in and out of the U.S. many times during this period.

 

[brdprince]

You probably can get RFE if filing within 90 days, I have read on REDDIT that people usually wait 90days, in one case guy filled AOS within 60 days of entering but had valid proof that he married his long time girlfriend and filed AOS.

 

[nelsona]

There is absolutely NO problem filing H1-B (which will only start in October at any rate). Having a TN and changing to H1-B is NEVER a flag. There is no need to wait, or restrict travel.

 

[voz16f]

Right, from my research, I heard CBP would have no knowledge of my lottery status for H1b at the time when I enter into the U.S.

But if I'm prompt by boarder officer: "will you COS?", I would have to answer yes, and explain I plan to file H1b COS. This could result in denied entry. Also, even if this question is not explicitly asked, future audits (for H1b, I-140 or I-485) could question my intent for this particular TN entry? I'm reaching out to my company's attorney as well but would like know people's opinion here.