TN Renewal and Reluctant Employer

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UofT-Librarian

Registered Users (C)
Hi,

This is my first post. I was wondering if I could get some help on TN issues. I have been on TN status for the last seven years in NY and have also submitted my I-485 on August 5th, 2007. My TN expires Oct 24th, 2007. Since I cannot leave US now, I asked my employer to sign my I-129 form so that I can renew my TN through mail since I might not be able to receive my EAD and Advance Parole by Oct 24th. But my employer (HR department) has rudely refused to sign my I-129 stating that they do not want to "sponsor" anyone for visas and that visa is an employees headache. However they have been issuing me a renewal of contract letter every year which I would take back to Canada and re-enter with a new I-94. The employer considers signing the I-129 as something which will legally bind them in some way. I have been told by the HR that if I do not show them a valid visa after October 24th, I will be deemed ineligible to work.

Is there any official website which will state that it is fine to undersign an I-129 and that it is no different than issuing a renewal of contract letter. If I already have submitted an I-485, do I really need to renew my TN status. Any help will be appreciated. Thanks.

UofT-Librarian
 
There are articles in here about getting your green card while on a TN. If you are at the I-485 then isn't your I-140 also approved (assuming you were sponsored by work). Or is it by marriage?

See a post by curious george in here that talks all about this.
 
First off, once you submitted an I-485, you became ineligible for ANY TN renewals, whether at border or by mail, so do not expect your I-129 to ever be approved.

Your EAD is the only way to work going forward (until GC approval).

Now, some have filed I-129 (knowing it will not be approved) to get their TN 'extended' for the little time they need until their EAD arrives. While a bit of a grey area, it is not considered a 'frivolous' petition, so the 240 day grace period seems to apply.

So your only choices are to file an I-129 (again, knowing it will not be approved) and use the grace period to work until your EAD is ready and in hand (Your EAD will not be ready before Nov. 5th, I guarantee). Your HR would seem to be unwilling to do this. OR take some time off between October 25 and EAD.


As to your employer not wanting to sign I-129, this is a bit harsh. This is likely because you made it *easy* for them for 7 years by aways giong to the border. You *could* go behing there back and file I-129 online on October 20th or so. But this doesn't get you arong HR's decision to require that you have a work document in hand on the 25th.

DO NOT go to the border without BOTH AP and EAD. Merely having AP will not get you a work status at the border since you are ineligible for TN, and they absolutely will check this in their system. Going to border with only EAD will mean you have abandonned I-485, since you cannot leave US without AP and keep your I-485 active.

The solution would have been to file your I-485 earlier, at least 90 days before your TN was set to expire.
 
nelsona wrote:

"OR take some time off between October 25 and EAD."

Thanks all for your thoughtful replies. Regarding taking time off, I asked my employer if I could take my "annual leave" during the gap between my TN expiration and EAD. I was told that my expired visa will result in my being ineligible for employment after October 24, 2007, and my annual leave will be paid out to me following that event.

So I guess my employer was to get rid of me using a technicality. Can law protect against the lack of good will or indifference of an employer. The employer is not a private organization but a big bureaucratised City entity where an employee is just an expendable statistic.

My wife is on H1B and has been sponsored by her employer. That's how I applied for I-485.

Any thoughts to legally oblige the employer to grant me leave or sign my I-129. Can I submit an I-129 without my employer's help except a renewal of contract letter attached to I-129.

Thanks in advance.

UofT-Librarian
 
You have no legal right to your job in most states. And with TN you only had a one year contract at best anyways.

You could file an I-129 on your own with the letter. The problem seems to be that your HR won't accept this, since you will not get a TN renewed by this method because your are ineligible. They want to see an I-94 with a new expiry date, or an EAD.

You won't get either by the 24th of October. That is why it was crucial that you submit your I-485 earlier than you did. It would have been best for you to renew your TN before submitting your I-485, and your spouse's lawyer shoulkd have realized this, or been informed of this. Apparently you were not made aware of the impact that filing an I-485 has on TN. Spilt milk at this point, but advice for others.

I woulds agree that your employer is being very uncooperative and that the HR does not seem to know, or care, the least about immigration matters.
 
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Maybe I should ask my employer for going on leave without pay. Someone suggested that it is possible to go the US Customs and Immigration authorities (say Niagara Falls) without crossing the border into Canada and ask to renew the TN. Has anyone heard of such a thing.

Thanks.

UofT-Librarian
 
Its not the crossing of the border, it's your pending I-485 that is the problem.

You, quite simply, are no longer eligible to enter US on an existing TN nor renew your TN status, either at border or by mail.

Your next step should be to contact your spouse's lawyer and see what they can do to remedy the jackpot they put you in.
 
My wife's lawyer says that until I have the HR department agree to file an I-129, there is nothing that can be done. The HR department will issue me a TN renewal letter for sure like they always do every year. But when it comes to filing an I-129, they are reluctant. So I guess I am stuck. O dear...My siutation is a grim lesson in suffering because of ignorance, someone else's fault or indifference of the powers that be.

Thanks.

UofT-Librarian
 
Yup. Seems that your wife's lawyer reamins clueless as to the effects he had on your carreer by filing I-485 for you while you were on TN.

As i said earlier, it is not cut-and-dried that filing an I-129 is even a solution, since USCIS *could* view it as frivolous, but that is your only shot. you might want the lawyer to send a letter to your HR expalining the situation. They obviously didn't know that they were 'sponsoring' you for all these years.

Remember, you don't care about getting the I-129 approved; you only care about getting it FILED before your TN expires (allowing the grace period to kick in), and then wait for the EAD which will be your new status until GC approved.

Another point for future: While there is the 240 day grace period for renewing a work status thru I-129, there isn't when you renew EAD, so be sure to file your EAD renewal nexy year about 3.5 months before it expires. USCIS 'guarantees' 90 day turnaround on EADs.
 
What if I take my self off from the I-485 application, get a letter of renewal from my employer, go across the border and renew my TN and save my job. My rationale is that if I loose my job, I also loose my mortgage and my house. My wife is the primary applicant. Will she still get her I-485 approved. Any thoughts.

UofT-Librarian
 
You have already exhibited the immigrant intent which precludes you getting TN. There is no point retracting your I-485 at this point. It doesn't buy you anything.

None of your actions will affect her I-485.

You need to do some serious education of your Hr at this point.
 
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... and before you settle in to the dire scenario that you have painted for yourself, remember that once you get your EAD, you -- since you are not the primary AOS applicant -- can work anywhere for anyone and even have your own business with absolutely no restrictions.
 
There might be a risky option - let us discuss if it is viable.

Since you filed on August 5, I bet your case won't be in their system before October 5. Right now it takes about two months to get the receipt for I-485 and I-140 concurent filing. If you call USCIS to confirm your status the day you will renew your TN at border (tell them your name and when it was filed), you might be able to renew your TN at the border immediately because the officer won't be able to find your case in their system. However, if you filed I-485 only on August 5, most likely you have already got the receipt and your case is already in their system.
 
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Regardless of having a receipt or not, leaving US (and yes, going to the POE even without crossing the border, if allowed, would be considered leaving US) without AP, or H or L status is abandoning your I-485.
 
Thanks for all your replies. I guess trying to educate the HR is my best bet at this point and show them the relevant official information regarding mailing TN renewal and 240 day grace period. I was trying to find the mention of 240 day grace period after filing I-129 on USCIS site but have not been able to do so yet. Does anyone have the official link which mentions that information. Thanks in advance.
 
It is in the I.N.A. laws. i have posted this a few times. google h1-B and 240 should find it.
 
TheRealCanadian said:
The other option is finding some new HR to deal with (hint, hint). You've seen how much (or little) your employer values you.
Click to expand...

Yes I agree. But human nature is the same every where. HR's attitude is a great lesson and a reminder that power has major blind spots. What surprises me the most (altho I believe in the irony of it all) is that many immigrants (in the land of the immigrants) face the same problems with no particular fault of their own. I am not doing anything illegal by applying for earned permanent residence status but I cant express it to a visa officer because I will be guilty of "dual intent." On the other hand I can loose my job because of the process of becoming a permanent resident. Irony and paradox, all the way up all the way down. That is called Lila.
 
... which is why you should be focussing your ire on the lawyer who screwed you, and your efforts on the HR who is toying with your carreer.
 
nelsona said:
... which is why you should be focussing your ire on the lawyer who screwed you, and your efforts on the HR who is toying with your carreer.
Click to expand...

If HR refuses to sign the I-129 petition but is willing to offer me a renewal of contract letter, like they do every year, can I submit I-129 on my own. Once I have the receipt, I can use that to validate 240 grace period rule.

Can I go to any court to get a "stay" on 240 day grace so that HR have to comply. I am not doing any thing illegal here. Just following the somewhat irritating rules of I-485s and TNs.
Thanks.
 
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