TN to H1B Conversion (re-entry into US)

A

ahasnain

Registered Users (C)
Hello:

I am a CDN citizen, living and working in Canada. I have a US employer with an offer, and willing to sponsor me through labor cert/GC process. My question is, am I eligible to convert from TN to H1B? Here is the situation:

I lived in the US on an L1B from June 2001 through Feb 2006. Old employer did not sponsor me :( , so in Feb 2006, I came back up to Canada. In June 2006, I obtained a TN, while a CDN resident, occasionally travelling to US but not living in US. I have lived in Canada since Feb 2006, and I have been on TN status since June 2006.

My question: Is there not a rule which states I MUST be out of the US for at least one full year before "reapplying"?? This rule is vague, can someone please explain me this rule, and whether it would preclude me from converting to an H1B right away?:confused:

Thank you kindly.
 
This rule only applies to H1-B holders who have exhausted their entire 6 year term of H1-B. Basically, if you have been on H1-B status for the entire 6 years (Initial H1-B term PLUS 3-year extension), you must be absent from the United States for 1 full year before applying for another H1-B (This does not include 7th year H1-B extensions granted to those with pending I-485 petitions).
 
Be careful, time on L1 also counts against H1 clock, so although you don't havve to go out of US to gt H1, you are still (a) subject to H1 yearly quota, so can only get one for nex octobr 2008, and (b) can only get H1 for about 1.5 years; you used 4.5 of your H/L clock already.
 
Thank you for your response. I just researched, and 2008 H1B cap has already been reached, so earliest start on H1B would be 2009 (filing by April 2008).

I have 3 quick follow-ups:

1. Since H1B is out of the question (not realistic in my situation), and I am already on TN status, if my new employer brings me down on TN status, will I need another I-94 (the category "Accountant" will be the same, but the employer, renumeration, etc will all be different). Or can I just let this TN expire in June 2008 and then go for a new one?

2. How quickly would I be able to get an EAD, in the perfect world?

3. I have a GC petition pending through my US citizen parents, the I-130 is languishing in the CA service centre (will come through sometime in the next ice age). Do you think this will be a problem if new employer pursues GC for me while I'm on a TN with them?

thanks very much.
 
1. If your job is the same as described in your TN letter, then you can still use this TN.
2. In a perfect world, you will be need to file PERM (3-4 months) and then file I-140/I-485 in December, and get EAD by March, so 7 months. However, since filing I-485 is not permitted now, until at least Octobr and probably MUCH MUCH longer, it could be years.
3. No. You will simply need to be careful when transitioning from TN ot EAD, if and when that will be possible, see 2.
 
Hey Nelson, thanks for your time/help. I have to ask: my H/L clock (6 years) of which 4.5 have been used, for it to readjust to 0, I would have to be:

1. Living outside the US for 1 year and
2. Not be in any non-immigrant/immigrant visa category/process for 1 year. ie when my current TN expires in June 2008, I could simply not renew my TN for one year (while living in Canada) and then my clock would go back to 0, correct?
 
As soon as you stop your TN, and you are no longer in US, you can begin counting down your 1 year.

But given the current state of H1, which you cannot get until Oct 2008 anyways, I would just continue for the next few years on TN and push for Green card. To stop in US working in the hopes of winning the H1 lottery some time in the future doesn't sound too wise, unless of course you land a good job in canada, in which case, why not simply find that job now and forget TN
 
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