H1B extension pending...should I apply TN1 to return?

[xml]

I have applied for my H1B extension and it is still currently pending at the USCIS. I submitted prior to the expiration of my I797 but is now expired. After a short visit home to Canada, I cannot return with a H-1B status until my extension is approved....Can I apply for a TN1 and return to the U.S. at the POE?

[Steven]

If you qualify for it, then yes you can, probably a good idea to abandon the H-1B to prevent confusion (you cannot be in two statuses simultaneously). Not much point to H-1B if you qualify for TN-1 as discussed on this forum various times.

[xml]

I want to keep my H-1B if possible because I may be turned away if the CBP knows that I have an I-140 approved...that just means that I have an immigrant intent...right?

Steven, do you think it is risky that I get a TN just to enter this time and still keep my h1b?

[agnelson]

Entry on TN will not kill your h1 petition. However you will likely need to return to border to activate the H1 once approved.

Decide which you want to keep and use that. You can easliy switch back to H1 later once your GC process is further under way, so save you clock time for later. I-140 doe not preclude entry on TN.

[Steven]

I want to keep my H-1B if possible because I may be turned away if the CBP knows that I have an I-140 approved...that just means that I have an immigrant intent...right?

Steven, do you think it is risky that I get a TN just to enter this time and still keep my h1b?

An I-140 doesn't mean you have immigrant intent unless you personally filed it, rather than your employer (i.e. if you were going for EB-1). Unfortunately CBP seem to have differing views on this, but legally you do not have immigrant intent with an I-140 pending until you get to the point of filing for AOS.