12th TN Extension finally filing for H1B... with questions

During this period, I have have extended my TN stay at both CDN and MX borders and mailed the petition twice and so far without serious incident. But I have feared, with the advice of a couple immigra...

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KevinW
New Member

Joined: 16 Jul 2008
Posts: 2
Location: Denver

Posted: Wed Jul 16, 2008 4:17 pm

During this period, I have have extended my TN stay at both CDN and MX borders and mailed the petition twice and so far without serious incident. But I have feared, with the advice of a couple immigration lawyers, that my luck may run out. With 4 different employers over 12 yrs, which may have helped with the temporary nature of TN status and the extensions.

Is there anyone else in the process of filing for H1B, with the intent of filing for permanent status? (I would be considered EB-3.) If so, I'm interested in a few specific items.

As the Perm process filed with the department of labor is required along with job postings, an important part is the prevailing wage. The prevailing wage for my job is set at a level which my employer is fearful of guaranteeing for possibly up to or over 6 years (also potentially audited). How does any employer guarantee a wage for anyone, especially for that length of time?

On a separate issue, if my H1B visa is denied, does this hurt my TN status if I choose to renew my TN again since a specific question on the I-129 application is "has this person ever filed for immigrant petition". I think this could jeopardize any future TN extension if done via mail.

Lastly, if in the end I decide to not apply for the H1B, could I continue to petition TN extensions (theoretically indefinitely) until I am someday denied, and then file for the H1B from Canada with my employer? What are the downfalls of this?

Any other advice is appreciated. If there are folks out there who have went through the H1B to PR process, I would sure like to hear from you. Thanks!

CalGreenCard
CanuckAbroad Regular

Joined: 16 Feb 2008
Posts: 54

Posted: Thu Jul 17, 2008 9:38 pm

KevinW wrote: As the Perm process filed with the department of labor is required along with job postings, an important part is the prevailing wage. The prevailing wage for my job is set at a level which my employer is fearful of guaranteeing for possibly up to or over 6 years (also potentially audited). How does any employer guarantee a wage for anyone, especially for that length of time?

They don't make any such guarantee. They can lay you off at anytime. They just can't pay you less than the prevailing wage.

KevinW wrote: On a separate issue, if my H1B visa is denied, does this hurt my TN status if I choose to renew my TN again since a specific question on the I-129 application is "has this person ever filed for immigrant petition". I think this could jeopardize any future TN extension if done via mail.

The H-1B is not an immigrant petition.

KevinW wrote: Lastly, if in the end I decide to not apply for the H1B, could I continue to petition TN extensions (theoretically indefinitely) until I am someday denied, and then file for the H1B from Canada with my employer? What are the downfalls of this?

The question is how patient the employer is willing to be. It can take up to 18 months from when you apply for an H-1B and when you can start work. It would take a different kind of employer to be willing to wait 18 months with no guarantee of success versus the immediate TN decision available at the border. On the other hand, if your employer allows some work-at-home work, you can work from Canada for a US employer without worrying about US visa issues.

KevinW
New Member

Joined: 16 Jul 2008
Posts: 2
Location: Denver

Posted: Fri Jul 18, 2008 5:57 am

Thanks! -- My second question was rather silly now that I look back. I am worried though that if I am accepted as part of the 'lottery' to receive an H1B and we file the I-145 that if I am laid off, will it hurt my chances of ever getting another TN?

CalGreenCard
CanuckAbroad Regular

Joined: 16 Feb 2008
Posts: 54

Posted: Fri Jul 18, 2008 6:41 pm

KevinW wrote: Thanks! -- My second question was rather silly now that I look back. I am worried though that if I am accepted as part of the 'lottery' to receive an H1B and we file the I-145 that if I am laid off, will it hurt my chances of ever getting another TN?

You can go TN->GC without the intermediate step of an H-1B. However, many lawyers and employers don't know this--and may or may not be receptive to efforts to 'educate' them--so it can be a practical advantage to have an H-1B even if, in theory, it shouldn't make any difference.

I don't know whether you meant I-140 or I-485. I do not think the I-140 causes any problems re getting another TN. You need to be reasonably confident that your job is good for at least another 180 days (to take advantage of portability) when you file I-485--though of course there are never any absolute guarantees in either employment or immigration.

From some of the things you are saying, I'm not sure whether your current employer is quite up to the challenge of sponsoring you for a green card. However, you can take some steps towards the green card now, and it may increase your chances of persuading another employer to sponsor you (being on H-1B, priority dates, etc).

Just don't file I-485 unless you are reasonably sure the job is good for at least another six months.