H1B 6 year limit: is physically absent from USA necessary?

If you have H1B for 6 years and the green card process hasn't started or reached a certain stage (filing of PERM), ir order to get a new H1B, are you required to be physically absent from USA for 1 year or can you switch to other visa (such as TN or student/H4 visa) for 1 year?


My current H1B starts Sep. 2004 and will expire Sep. 2010. My current job is in danger. Very few companies are willing to do H1B transfer given that I only have 1.5 year left on H1B, and many companies can't start green card within 6 months or so because they are laying off people. I am thinking about finding a job using TN visa (I am a Canadian citizen).

If I use TN now, and switch to H1B after Sep. 2010, I guess that I can still have 1.5 year left on my H1B, and my H1B application will not be subject to the quota. Right? 1.5 year after got my new H1B (H1B total time will be 6 year by then), I may run into the issue as above.

Thanks a lot.

You have to be physically outside the US as per: 8 CFR 214.2(h)(13)(i)(B) for it to reset to the full six years, but you can use the remainder if you still qualify for it. This is a bit of a grey area, you should check with USCIS as most people who can get H-1B cannot get TN-1.

I'm not quite clear why you would want to be on H-1B if you qualify for TN-1. It's not dual status but the usual trick is to put down a Canadian address on the I-140, and then you leave when the interview comes up and re-enter with an immigrant visa.

I guess that my remainder of 1.5 year on H1B will be valid and can be used in the future, but the grey area is whether I will be subject to H1B quota when I apply for H1B in the future.

Employer will always require you to be on H1B if they want to sponsor your green card, especially with large companies with corporate polocies. Applying for green card on TN is probably a not so certain thing and most large companies won't do it, I guess.

Thanks.

I guess that my remainder of 1.5 year on H1B will be valid and can be used in the future, but the grey area is whether I will be subject to H1B quota when I apply for H1B in the future.

The grey area is how being in TN-1 status affects it, I don't think it does but I'm not sure. If you can still get the 1.5 years then there is no quota. If you left for a year then you would get the full six years again but there would be a quota. But the law says you must leave for one year to get the full six years again.

Employer will always require you to be on H1B if they want to sponsor your green card, especially with large companies with corporate polocies. Applying for green card on TN is probably a not so certain thing and most large companies won't do it, I guess.

I can't see why, I know people who've been in a variety of other categories and been sponsored. Generally they use outside companies to do the paperwork anyway, I have no idea why anyone would have a specific policy along those lines.

With the current 3 year TN visa, It's practical to apply for green card on TN status. With the previous 1 year visa, it's practically not possible. (i.e., your next TN visa renew may get rejected while in GC process).

Applying for GC from TN status still has some limitation. Immediately after submitting I-485, you need to apply for EAD (employment authorization) and AP (advance parole), if you ever want to travel outside of USA.

It's probably because of these, I always hear that most big companies require you to be on H1B first before sponsoring GC. It's also because the 3 year TN visa thing is very recent changes.

Thanks.

TN-1 is not dual-status, that's the problem with applying for permanent residency, not the length of validity.

I am a canadian citizen on H1B but got laidoff recently. With the current mrket situation it is difficult to get employers willing to transfer my H1B. Should I go the TN route? My wife just did her US citizenship interview recently, should I just wait till she get her citizenship and get sponsored by her? Any advise is appreciated.

If you've been laid off you're out of status and you need to leave, employers are required to notify USCIS when they lay off people who have H-1B. Given that your wife appears to be planning on staying, it doesn't sound like you have non-immigrant intent so you can't re-enter as a non-immigrant unless she's planning to leave. So in that case she would file an I-130 for you and sponsor you for permanent residency, seems to be taking about seven months at the moment depending on which service centre she has to use.

You can visit while you're waiting but you need pretty heavy-duty evidence you plan on leaving if you tell them you're visiting your US citizen spouse.

TN-1 is not dual-status, that's the problem with applying for permanent residency, not the length of validity.

I can't see why, I know people who've been in a variety of other categories and been sponsored. Generally they use outside companies to do the paperwork anyway, I have no idea why anyone would have a specific policy along those lines.

Are you contradicting yourself? If you can't apply for green card from TN, what other categories are you referring to if it's employment based?

From what I know, there is no law saying that you can't apply for green card from TN status. However, USCIS can reject your TN renew because you have applied for GC. With the 3 year limit on TN visa, you 1st renew TN, then file GC application, as long as you submit I485 before next TN renew, you will be fine. USCIS will not reject your GC because you are on TN status.

-- Mon Apr 20, 2009 10:09 am --

If you've been laid off you're out of status and you need to leave,

How soon are you required to leave?

Could you file a change of status to change to visitor status and stay for a few months without physically leaving and re-entering? You can say that you need to either settle your current rental lease or sell your house.

I am talking about a general case of losing either H1B or TN status due to loss of job, not the particular poster's special case.

Are you contradicting yourself? If you can't apply for green card from TN, what other categories are you referring to if it's employment based?

No, because there are other employment categories, such as various other H categories and also L being the main ones. There are other more obscure ones like O.

From what I know, there is no law saying that you can't apply for green card from TN status. However, USCIS can reject your TN renew because you have applied for GC. With the 3 year limit on TN visa, you 1st renew TN, then file GC application, as long as you submit I485 before next TN renew, you will be fine. USCIS will not reject your GC because you are on TN status.

You can apply for AOS if you get a visa number somehow, e.g. through marriage, but your employer cannot sponsor you for a visa number from TN-1 because you must have non-immigrant intent when you enter, whereas H-1B is "dual status" which means you can enter with the intent to stay.

The usual way around it is they put down a Canadian address on the I-140 and you use consular processing. Or change status to some other category.

How soon are you required to leave?

The law doesn't provide for a limit, basically you have to leave immediately however the caselaw I vaguely recall said you have a "reasonable" amount of time to leave which USCIS seem to interpret generally as ten days.

Could you file a change of status to change to visitor status and stay for a few months without physically leaving and re-entering? You can say that you need to either settle your current rental lease or sell your house.

You can file I-539 to do this, however the catch is that if you've already been in the US for more than six months (i.e. longer than the standard visitor limit) they may not grant it. I was expressly told by INS once at a POE that because I'd been in the country in a different category that they wouldn't have let me in as a visitor if I'd already spent six months that year in the US, fortunately I hadn't.

However there have been other people on here who've managed to pull it off, seems to depend on who you get either with CBP or USCIS.

I'm not sure there's much logic to actually filing I-539 because it costs $320 anyway, usually you can get to a POE and re-enter for around that much or less and it's quicker. Although I suppose you could get stranded if they won't let you in. The other problem is that it says on the form to file it 45 days prior to the date you want the change to become effective, so if you lose your job you haven't got enough time to file it.

Just don't make the mistake of overstaying like that guy on here the other day who got denied entry: tn-after-an-i-275-withdrawal-of-app-to-entry-the-us-vt6103.html