TN rejected and revoked but h1 approved

O

owais20

New Member
Background of my situation:
I'am a Canadian citizen and I was wondering if someone can help me with my situation. I had been working in US under TN status (systems analyst). However, I recently got a new job for which I needed to get new TN as systems analyst again. This time the immigration officer rejected my TN application and told me that I do not qualify for TN as I have Bachelor's of commerce degree (I wonder how come they approve it before and I renewed it twice is last 4 years). To make things worse, the immigration officer also revoked my valid TN for my old employer. So, my employer lawyer suggested to go apply for TN again at the US consulate. I applied for new TN at US consulate in Montreal and my case has been in administrative processing for past 7 weeks and they re-opened my last approved TN renewal application from USCIS. During all this, my H1-b (change of status from TN to H1)also got approved and I have I-797 approval notice with me on hand. So my questions are the following:

1) How long it takes for administrative processing to complete?
2) How long it takes them to complete the process after they re-open my previously approved TN application?
3) Can I go to US POE with my H1 approval notice I-797 and get my passport stamped after the interview.
4) Will I have any problem to get my passport stamped with H1 while they see that my TN application is still under process.

Thank you, I would really appreciate your advice.
 
You were lucky regarding your first TN, as it is very hard to obtain a TN without your credentials matching the category unambiguously.
Please share with us which POE you went to , where this happened, this may help others.
 
TnRaju said:
You were lucky regarding your first TN, as it is very hard to obtain a TN without your credentials matching the category unambiguously.
Please share with us which POE you went to , where this happened, this may help others.
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I went to Toronto Pearson Airport.

What about my H1 approved I-797. Will i have any issues with that?
 
I would not go to the border until the administrative processing has been completed. Most CBP officers dont know how to treat these situations and may assume you are trying to circumvent the process. On the other hand, you can try going to another POE with your H1 approval , but I still feel its risky , especially with President Trump's direction towards immigration. I am assuming you are visible minority. Please dont take me wrong, I meant to say if one's appearance is more European and they hold a Canadian passport, it does work slightly in their benefit.
 
TnRaju said:
I would not go to the border until the administrative processing has been completed. Most CBP officers dont know how to treat these situations and may assume you are trying to circumvent the process. On the other hand, you can try going to another POE with your H1 approval , but I still feel its risky , especially with President Trump's direction towards immigration. I am assuming you are visible minority. Please dont take me wrong, I meant to say if one's appearance is more European and they hold a Canadian passport, it does work slightly in their benefit.
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Thank you for such good response. One last thing, my h1 was a change of status application from TN to H1 since I had TN status at the time my company filed the petition. In case i get denied TN visa again which is in administrative process right now, will my H1 approval still be valid?
 
The best advice is for you to now work on H1. Your firm went through a lot of trouble to get you H1, and your TN will ultimately be rejected at the consulate, because Cdn consulate do not handle TN, and in the off-chance that they do, that is merely a visa to enter US in TN, it is not work authorization. You will still need to pass CBP approval with I-94, which you will fail. After all, you already had a valid TN I-94 in hand, and CBP took it away from you.

Sorry, but TNraju's advice to wait out the state department is not the best. CBP cannot deny H1. They WILL deny TN even if consulate issues TN visa (which, again, is just a permission slip to take to CBP for approval), Consulate is NOT USCIS. The consulate route is a non-starter (Poor advice from non-TN-savvy lawyer, I'm afraid, which is typical -- they would have been better to suggest I-129 mail-in to USCIS). CBP and USCIS both have upper hand over Cdn consulates on TN matters.

I'm surprised your H1 approval didn't come with an I-94 on it, this would mean you instantly became H1 on October 1. there would not have been any need to go to the border for the H1-B job.

Be happy that you were able to hold on to TN for as long as you did, long enough to get H1, and move on to that.


You need to get back to work.
 
nelsona said:
The best advice is for you to now work on H1. Your firm went through a lot of trouble to get you H1, and your TN will ultimately be rejected at the consulate, because Cdn consulate do not handle TN, and in the off-chance that they do, that is merely a visa to enter US in TN, it is not work authorization. You will still need to pass CBP approval with I-94, which you will fail. After all, you already had a valid TN I-94 in hand, and CBP took it away from you.

Sorry, but TNraju's advice to wait out the state department is not the best. CBP cannot deny H1. They WILL deny TN even if consulate issues TN visa (which, again, is just a permission slip to take to CBP for approval), Consulate is NOT USCIS. The consulate route is a non-starter (Poor advice from non-TN-savvy lawyer, I'm afraid, which is typical -- they would have been better to suggest I-129 mail-in to USCIS). CBP and USCIS both have upper hand over Cdn consulates on TN matters.

I'm surprised your H1 approval didn't come with an I-94 on it, this would mean you instantly became H1 on October 1. there would not have been any need to go to the border for the H1-B job.

Be happy that you were able to hold on to TN for as long as you did, long enough to get H1, and move on to that.


You need to get back to work.
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Ya, I already told the company where i got new job that am not going to join. I'm staying with my old employer since they have already done so much for me.

So, you are saying that I can still go to POE with my H1 approval notice I-797 while my TN application is processing and I should not have any issues?
 
Of course. The consulate doesn't have the power to "approve" your TN; they can only issue you a visa (which is useless for Cdns). No one goes to consulate in Canada for a TN.

Besides, you don't want TN, you want H1. At this point I would be contacting the consulate and asking them to withdraw your visa request.

And like I said, did you verify that your I-797 didn't have an I-94 attached to it? If it did, you were and are in H1-B status. No need to go anywhere.

And where are you now? You don't have TN status anymore. How did you enter US?
 
@nelsona , You are right, there is no need to wait for the administrative processing to be complete. But I personally know some people who had to go through a lot due to administrative processing. This usually has nothing to do with credentials or any other academic or work related factor, but mostly about the individual itself. Even though the USCIS website suggests waiting 60 days , it may take longer and is usually based on the individuals background and the demographics of his place of origin. Some of my friends were subject to administrative processing for an H1B because of their nationality or religion. Now the USCIS may have a legitimate reason to do all of this, but since we are advising an individual, it may be wise to take precautions as it may harm the chances of obtaining either status. Also since he is already working from home ( Canada ), he might as well wait it out. This is what I feel.
 
nelsona said:
Of course. The consulate doesn't have the power to "approve" your TN; they can only issue you a visa (which is useless for Cdns). No one goes to consulate in Canada for a TN.

Besides, you don't want TN, you want H1. At this point I would be contacting the consulate and asking them to withdraw your visa request.

And like I said, did you verify that your I-797 didn't have an I-94 attached to it? If it did, you were and are in H1-B status. No need to go anywhere.

And where are you now? You don't have TN status anymore. How did you enter US?
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I checked there is no I-94 with the approval notice I got from USCIS. What I have heard is that after people get this I-797 approval notice, I have to go to an interview. As for Canadians citizen, I can simply go to any POE for this. I'am assuming they will give me I-94 after I visit the POE. Also, I tried withdrawing my TN application from consulate but they said I can't do it after the interview at consulate. So i think i have to wait for administrative processing to be done for TN decision. But as per you and TnRaju, I don't have to wait for TN decision.

@TnRaju, I was working from home (Canada) for my employer and getting paid in Canada for past few months but now they want me to work from US. They will still support me 100% with all the Visa process but they won't be paying me anymore until I'm in US which is my major concerned.
 
did you employer file for COS when they petitioned for your H1?

IAC, I also think going to the border with your H package should be fine...CBP should issue you an I94
 
Hello Mister said:
did you employer file for COS when they petitioned for your H1?

IAC, I also think going to the border with your H package should be fine...CBP should issue you an I94
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Yes, they applied filed for Change of Status when they filed for my H1. What do you mean by IAC?
 
Mister, if there was no I-94 attached, then COS was either not requested, or it was not granted.

Just to explain the H1 process, if applying from within US. When I-797 is issued without I-94, the beneficiary has to go to the border to get an I-94, and, if not Cdn, must also go to the Consulate to get a H1-B visa (that would be the "interview"). Most lawyers forget that Cdns don't need visa, but they tell their clients they need to get visa, which is what is stated on the I-797 (which should be ignored by Cdns).

At the border, CDB has no jurisdiction over H1 approval, they only have say on admissibility (ie. criminal, lying, overstay). They cannot deny the h1 petition for other grounds. There is no interview.

So, a Cdn who gets an H1 approval with I-94 attached, needs to do nothing: he is immediately (or on October 1st) in H1 status with the sponsor. If the approval does not have I-94 attached, then they must simply go to border to 'activate' the H1. Until then they are in their old status, if such exists.

Since you were outside US when the H1 was approved, there would not be an I-94, COS was not possible, simce COS implies you had an existing status, which you only have when in US (ie. You are not in TN -- or any -- status while physically in Canada)

IAC= in any case
 
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