Contract work - TN to H1 to green card questions

[ceo]

Hello

I've been working for the same company under TN for several years. I work in a government contract doing projects that generally last no more than a year. The contract is a vehicle for work and is non-guaranteed, that is, if there are no projects within the contract, then my employer cannot pay me under this contract. Because of this circumstance, the TN seems ideal and so that is why I've always used it.

Now this contract expires in March 2010 and is not going to be renewed. My employer did win another contract vehicle which has better potential for long term projects. However, those projects have yet to be defined/approved for development. When exactly the work will begin is unknown at this time (it could be anywhere from a few months to a year from now).

My plan is to apply for another TN until the March 2010 deadline for the current contract. (My current TN expires June 13.) Between now and next March, I would consider applying for perm residency using work under the new contract to support my application (pending work availability of course and its long term prospects). I know i cannot be on TN when this happens so I need to be on H1 in this case.

I would like to know what people's opinions are on this course of action.

1. What is the likelihood can I get a new (final?) TN approved for my current work given that I've "renewed" several times in the past? (I hear horror stories but I do have a definite ending date for the existing contract.)

2. Would an H1 be better than a TN in this case? Should I go for the TN now (to meet my deadline) and then apply for H1 before the 2010 quota is met? Or wait till next March for H1? Or just go for H1 right now and forget the TN? (Either way, I need to keep working beyond this June.)

3. In regards to permanent residency, would I be able to successfully apply if my work is still under a government contract despite the projects having potential for a long term future.

Thanks.

[Steven]

1. What is the likelihood can I get a new (final?) TN approved for my current work given that I've "renewed" several times in the past? (I hear horror stories but I do have a definite ending date for the existing contract.)

Depends on who you get at the POE frankly, but given that the job offer letter will say March 2010 I wouldn't have thought it would be a big problem.

2. Would an H1 be better than a TN in this case? Should I go for the TN now (to meet my deadline) and then apply for H1 before the 2010 quota is met? Or wait till next March for H1? Or just go for H1 right now and forget the TN? (Either way, I need to keep working beyond this June.)

I don't think it makes a fat lot of difference really, because the quota hasn't been met for this year. There is a Bill in Congress right now that if it passes will require full labour certification for H-1B, i.e. not only must you fit the job, they must have tried to find someone locally, the same as with I-140 type applications. So given that and the economy the chances of the quota filling up again next year are pretty close to nil, I would say.

Obviously if you get H-1B you avoid the tougher labour certification, but it doesn't sound to me as though you need it.

3. In regards to permanent residency, would I be able to successfully apply if my work is still under a government contract despite the projects having potential for a long term future.

Well, your employer applies not you, there's no reason why they can't apply from the sounds of it. Bear in mind EB-3 Skilled Worker takes several years to get approved anyway, if you fall into EB-2 it's quicker.

H-1B is dual-status which makes going from it to LPR status somewhat easier, however you have to be careful if you're EB-3 Skilled Worker because H-1B is only valid for a maximum of six years and you have to be near the end of the sponsorship process to get the "H-1B until you get LPR status" exemption.

I'm sure you're thinking to yourself that H-1B sounds more sensible because of the dual-status thing however bear in mind that H-1B has a ton more restrictions on it than TN-1. The advantage of H-1B is that it's dual-status and the job title is not so important, BUT it has other specific provisions, e.g. the employer must notify USCIS of any layoff, the work must be full-time, labour certification is required, it can only be renewed once after evidence of job advancement is shown etc.

Personally if it were me I'd stick with TN-1 because you're more "under the radar" in that category but only you know what your HR dept. is like.

[ceo]

thanks for the response steve....

the reason why i was considering a H1/LPR is because i dislike the uncertainty of being on TN indefinitely. under the TN, my plan is to always move back to Canada every year, and because of that, i can't settle in either country. once i make a decision as to where i want to settle, it makes life easier. i can buy a home, settle down, go to school... right now, i can only do that in canada without worrying.

i do think USA is a good place to settle but i need the right timing and opportunity.... i just hope i can last long enough on a TN until the right opportunity presents itself without them giving me a hassle about it at the POE every year.

[Steven]

Bear in mind TN-1 can be granted for up to three years now, they changed the time limit in October. There's no real advantage being on H-1B as far as that goes, other than it being dual-status.

[ceo]

with all the horror stories, i am concerned about TN renewals...i'm afraid they will accuse me of non temporary intent since i've renewed the TN for so many years..... but it;s the nature of my work. i can only plan ahead from year to year....

if by any chance they ask me why i've renewed so much, how would i respond? what kind of evidence should i being with me?

[Steven]

Well technically it's a re-grant, the regs say specifically there are no limits on how many times TN-1 can be granted, however you must demonstrate the stay is temporary. As you're only applying for less than a year, then you've demonstrated it, imo. There's no requirement to have an abode in Canada on TN-1 although having some evidence of residential ties to Canada helps prove it's a temporary position.

The other alternative is for your employer to file an I-129 and apply for TN-1 status without your leaving the country. This has positives and negatives, in fact the same one, i.e. you're not there to answer their questions which means that can foul up your application, but on the other hand you're not there so they can't quiz you and you can't say anything to foul it up either. Plus I-129 costs $320, applying at a POE costs $56. And it's not a particularly easy form to fill out.

I have no idea about your job obviously, but given the economy and hours being reduced and people being temporarily laid off, personally I think TN-1 makes more sense because of that. On H-1B if you end up part-time then technically you don't qualify and if you're laid off then you have to leave. The way the regs are written for TN-1 if you're still employed and it's a temporary lay off then you may be okay to stay while the TN-1 is still valid. I say "may" because there's nothing in the regs against it, but I suspect if it ever ended up in court you may get a different answer.

[ceo]

Well technically it's a re-grant, the regs say specifically there are no limits on how many times TN-1 can be granted, however you must demonstrate the stay is temporary. As you're only applying for less than a year, then you've demonstrated it, imo. There's no requirement to have an abode in Canada on TN-1 although having some evidence of residential ties to Canada helps prove it's a temporary position.

all of my family and close relatives are in canada. the plan is i would move back to my parents home. my RRSP statement is sent to their address actually. in regards to the US, i don;t have family or spouse (not sure how to prove that). my apartment lease is month-to-month. this allows me the flexibility to vacate at any time during the year if i were to move back within the valid TN due to layoff or other matters. i'm hoping this is enough evidence to support it.