TN -> H1b, travel to Canada when h1b petition is pending

#1
Hi Guys,
I'm going from TN to H1b and my company asked me to choose between consular processing or Change of status.
Given the possible future visa restrictions, I asked them to apply with COS just in case ....
I saw in a few forums that going to Canada through the land border was usually ignored because you keep your i94, is it accurate ?
Does it mean I could drive to Canada and my petition and COS would still be approved ?
Worst case scenario, h1b petition is approved and COS denied and you can still apply at the border which would be similar to choosing consular processing ..., am I right ?
What would be the benefits of choosing Consular processing in that case ?
Thanks !
 

nelsona

Registered Users (C)
#2
Assuming you are Cdn, you can't do consular processing of H1 after approval, and it is not necessary. If your I-94 was not granted along with approval (no reason why it wouldn't) you would simply go to border to activate the H1, when it would be convenient (staying on your current TN in the meantime).
 
#3
Yes Cdn citizen, when I said Consular processing I meant choosing consular processing with approval notice sent to a POE.
My company attorney said I cannot leave the US with a COS because the i94 would not be granted along with approval if USCIS knows I left the country, I'm just trying to understand if if the case when you go to Canada ...
 

nelsona

Registered Users (C)
#4
Before approval, you *should* stay in US, if you want the COS to take effect, although there are many instances where the I-94 has been granted, simply because the old I-94 was not cancelled. Once approved, even if the start date is in the future, you can travel and the I-94 issued with the approval notice is still good.

I would apply COS, and if you leave before approval, no harm done, just go when it convenient later to activate. sometime before your TN expires.
 
#5
Thank you for your help.
Now let's say that the COS is approved (TN to H1b), could I still enter with my previous TN status (valid until 2022) when I travel and come back to the states (Before and After the COS date) ?
Or is the TN cancelled after the COS to H1b ?
Asking just in case they ban H1b to enter the country, I still want to be able to travel with my old TN if that happens ....
Thank you,
 

nelsona

Registered Users (C)
#6
If you do COS, and an I-94 is attached, The TN is cancelled when the EFFECTIVE date of the H1-B occurs., which for most is October 1. The transition occurs on the effective date without you having to do anything, and whether or not you leave US in the intervening period.

If they "ban" H1 (not going to happen) from entering the country, and you are in active H1, then you will need to apply for TN again.

But this is far-fetched even for the orange one.
 

Amberleaf

Active Member
#7
I fully agree, H1B will not get banned. The President does not have the authority to do that. Changes in US immigration must go through Congress and is very difficult to get accomplished ( and very political).
H4-EAD was to be killed, but still exists today.
DACA was threatened to be killed, but still exists today.
TN status was threatened to be killed when renegotiating NAFTA, but still exists today.
Also too many people on H1B to ban it. Estimates range up to half million currently on H1B. https://en.wikipedia.org/wiki/H-1B_visa

I was on TN and my employer switched me to H1B (after denial and MTR, but that is another story). I travelled on TN while H1B was pending.
I received I-797B approval notice without I-94 from company law firm. (I also had spouse and dependant on TD status)
I was told I could fly to Canada with my Family at my convenience and activate my H1B and spouse/dependant H4 at any time before my TN I-94 expired.
I did not want to wait, and since I live in Southern California, I drove with my Family to San Diego/Tijuana POE at San Ysidro Ped West CBP facility. We activated our H1B / H4 and obtained new I-94 cards with new expiry to match H1B expiry. Easy day trip on a Saturday.
 
#8
He cannot ban H1Bs all together but he can ban the entry of H1Bs like he did for the previous executive order ....
Do you know why you didn't receive the i94 with I-797B approval notice ?
Was it because you traveled or because they applied with Consulate processing (not COS) ?
 
#9
My employers law firm applied with Consulate processing, the I-797B, notice of action, approval notice, says "Consulate/POE : Toronto, Canada".
Canadian Citizens don't need to visit the Consulate to activate, one can activate at any POE. We did at San Ysidro, California, POE.
My employer did not give me a choice between CP or AOS. I think they wanted me to be able to travel on TN while H1B was pending and it would have been more expensive for them to file AOS, as they would have had to file AOS for my spouse and dependant. With CP they only filed H1B for myself.
 
#10
Makes sense but even with an H1b COS petition pending you should have been able to travel with your TN, it's what I'm gonna do (travel on TN with H1b petition) but it becomes pretty stressful with these rumors or executive order.
 
#11
Don't pay attention to the rumours. You need a thick skin to live as an immigrant in a foreign country. You will experience many obstacles, you just need to overcome them one by one. I have been through it for almost four years (including a silly H1B denial and final approval after MTR). Now that I am a GC holder for over a year, I feel much more comfortable and can make longer term decisions, like buy a home, send a kid to University in US, etc.
If you can't handle the stress, don't come to the US as an immigrant. To be honest, now that I live in the US, Canada is a better country in many aspects. But you can't beat the weather in Southern California.
 
#12
So he just banned H1Bs ..., still need to see the exact text of the Executive order but does it mean I can still travel before Oct 1st under TN status if I have an h1b petition pending ?
If I don't want to be stuck in the US after Oct 1st, I'll have to apply for a new TN at the border if the petition is approved with COS, right ?
 
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