Afraid to renew TN, what are my options?

[ceo]

Plan and Scenario:
So i plan to renew my TN until our contract expires in march 2010. In the meantime, we anticipate a new long term opportunity (at least 3 to 5 years). So I plan to proceed with Gc process under this oppontunity. My understanding is company will have to file labor certification, and once approved, I-140. My understanding is that this process may take at least 2 years. This is obviously beyond the duration of the TN (9.5 months).

My Concern:
I've renewed TN 8 times already, it's getting risky for me. I would like to avoid this again if possible but still keep working while my LC and I-140 is being processed. Also, with the new 3 year TN, I am even more reluctant to request that.

So I have some questions:

1. Assuming the LC process exceeds my TN and I would like to continue being employed by the company but am reluctant to renew the TN out of risk. Is there any other option to remain working other than renewing a TN? H1-B? EAD?

2. What about mail-in renewal of TN? Is there less risk there?

3. If say I go the H1-B route, if I manage to get it for FY2010, then I won't worry about the TN expiring anymore. But let's say it does not get approved this year or I miss quota. I have to wait until 04/01/10. If my TN expires on 03/31/10, and I do not wish to renew but wish to remain employed, can I take an unpaid leave of absence in Canada while I wait for my H1-B for FY2011.

Will this be acceptable by USCIS that I am out of the country, unpaid, but still an employee of my sponsoring employer? (Let's assume around this time, they also filed an I-140 which prevents me from ever renewing or obtaining a new TN.)

4. If while I am waiting, if my LC goes through, can my employer then apply for I-140 while my H1-B is still pending?

5. What happens if the H1-B is not approved again. If my employer filed I-140, I cannot do TN anymore (not that i would be comfortable to renew anyways) what options do I have left in terms of being able to work?

6. Under what circumstances would a LC or I-140 that would have normally been approved, be cancelled. (e.g. If I am on a leave ofabsence with no status, will that cancel the process?)

7. Given that I have already renewed 8 times (this will be my 9th), should I shoot for the moon and ask for 3 years on this renewal? What can i expect them to ask me? What do i need to prepare myself with for the interrogation? I would only attempt this if the risks were not so great. But 8 years in the USA already, I feel I'm on shaky ground with this one.

I wish the 3 year TN was available a few years earlier for me.... it would have been great.

[Steven]

1) There is, such as H-1B, but I can't see the point frankly other than that TN-1 isn't dual status.

2) If you're in the same job with the same company, filing I-129 is straightforward, it does reduce the chances of getting a CBP guy on a bad day.

3) Your employer is legally required to notify USCIS when you stop working on H-1B, so if you're out-of-status you're not working for them. Whether you're still on their books as an inactive employee I think is largely academic.

4) Well I think the real question there is about the labour certification, because for H-1B and an I-140, the certification is different, with I-140 they have to be able to show there is a labour shortage in that area or they can't find anyone locally according to the DOL rules.

5 and 6) The usual trick here is to put a Canadian address on the I-140 and then you leave and apply for an immigrant visa rather than doing AOS when the visa number comes up. So in that situation it doesn't really matter if you're on H-1B or TN-1, because if you leave the US then the I-140 application would still be valid.

7) Hard for anyone to say because we're not in your situation, from what you've said I suppose the best option is to get your employer to file I-129 for a three-year renewal on TN-1, which is the simplest option.

[ceo]

Hard for anyone to say because we're not in your situation, from what you've said I suppose the best option is to get your employer to file I-129 for a three-year renewal on TN-1, which is the simplest option.

thanks steve, you've been very helpful with your responses. in the event that an I-129 gets rejected, would I be allowed to remain if my TN is still valid? if the extension gets rejected, is there an appeal process or can i re-apply for a new TN in the future? I'm just wondering if a rejected I-129 will go on record preventing future renewals or extensions.

this sounds like the least stressful way. at least if i know i cannot extend, i'll be in the USA rather than outside.

[Steven]

I've never been clear at what point CBP gets wind of USCIS filings, they do eventually but I think it only happens when the final disposition takes place. With a refused I-129 it would depend on the reason for the denial, in your case I think it would only happen (and be a problem) if they didn't believe the job was temporary. Just make sure the job offer letter is clear on the three year limit. Rather than worrying about appeals, if you think there is any chance of denial apply at a POE because you're there in person to answer their questions.

There have been several people on here previously who have had TN-1s for 10+ years and two or three of them said they do it via I-129 at renewal time. Given that USCIS is staffed by bureaucrats, and at a POE you might run into some closet bigot, I think I-129 probably makes more sense in your situation.

Your current TN-1 stays valid until expiration, unless of course you get fired or something like that.

[ceo]

I've never been clear at what point CBP gets wind of USCIS filings, they do eventually but I think it only happens when the final disposition takes place. With a refused I-129 it would depend on the reason for the denial, in your case I think it would only happen (and be a problem) if they didn't believe the job was temporary. Just make sure the job offer letter is clear on the three year limit. Rather than worrying about appeals, if you think there is any chance of denial apply at a POE because you're there in person to answer their questions.

There have been several people on here previously who have had TN-1s for 10+ years and two or three of them said they do it via I-129 at renewal time. Given that USCIS is staffed by bureaucrats, and at a POE you might run into some closet bigot, I think I-129 probably makes more sense in your situation.

Your current TN-1 stays valid until expiration, unless of course you get fired or something like that.

would it be important that the job title matches for my current TN renewal and a possible I-129 extension request? the request will likely be for a different project within the same company. both positions are engineering and pretty much the same core skill requirements. i was considering using simply "engineering" as the job title as opposed to specifying whether it's "electrical", "network", "computer" or "software" which i can be classified under. i'm just thinking about being consistent between current request and extension request and my degree of "electrical".

-- Wed Jun 03, 2009 3:15 pm --

I've never been clear at what point CBP gets wind of USCIS filings, they do eventually but I think it only happens when the final disposition takes place. With a refused I-129 it would depend on the reason for the denial, in your case I think it would only happen (and be a problem) if they didn't believe the job was temporary. Just make sure the job offer letter is clear on the three year limit. Rather than worrying about appeals, if you think there is any chance of denial apply at a POE because you're there in person to answer their questions.

There have been several people on here previously who have had TN-1s for 10+ years and two or three of them said they do it via I-129 at renewal time. Given that USCIS is staffed by bureaucrats, and at a POE you might run into some closet bigot, I think I-129 probably makes more sense in your situation.

Your current TN-1 stays valid until expiration, unless of course you get fired or something like that.

thanks for the response. my employer wants me around for a while beyond the existing contract, so has decided to file the I-129 for me requesting for 3 years. they're doing it through their attorney. it was explained to me that with a timely filed extension request, I can remain and work past the expiration up to 240 days while the request is pending (or until rejection). i guess no vacation for me.....but wish me well.....

[Steven]

would it be important that the job title matches for my current TN renewal and a possible I-129 extension request?

Well, it's more important that it's one of the NAFTA job titles, have a read of 8 CFR 214.6