I am sooooo confused! (re:visas)

Hello everyone. Talk about confusing! My dh found his 'dream job' this week and has applied...but it's in the US. There is no doubt that he will be the most qualified for the position. He is a Professional Engineer (BScE) w/14 years experience. When I read the immigration standards, I am soooo confused. Would he apply for a TN Visa or H1-B? It sounds like it takes a lot of time and effort to get an H1-B and I doubt the company would wait years, whereas a TN would go faster and we could go as TD. However, the TN visa requires that you not intend to stay in the US. Does this mean that you cannot apply for a green card from a TN Visa? Can someone start as a TN just to get in, then switch to an H1-B? And just how difficult is it for an employer to prove that an American did not fit with what they wanted? This is a major US corporation. Also, the job would require travel outside the US (mainly to China). Would dh be able to do that on a TN visa?

Regardless of whether dh is successful with this job or not, we'll need this info. There just aren't jobs in his field anymore in Canada. Worlwide corporations are all headquartered in the US and, moving into an executive level, that's where the jobs for him are. It's sad that he's worked so hard to get to this level and there's a ceiling because he's Canadian. We have to figure out how US immigration works so he can continue to grow in his career.

My dh found his 'dream job' this week and has applied...but it's in the US. There is no doubt that he will be the most qualified for the position. He is a Professional Engineer (BScE) w/14 years experience. When I read the immigration standards, I am soooo confused. Would he apply for a TN Visa or H1-B?

Whether or not he would qualify for a TN depends on the job title. If it's for a job as an Engineer, that job title is on the NAFTA Professional Job Series List and would thus qualify for a TN, which, as you noticed, is much easier to get (and cheaper) than the H-1B.

However, the TN visa requires that you not intend to stay in the US. Does this mean that you cannot apply for a green card from a TN Visa?

The TN is a nonimmigrant classification which means that, unlike the H1-B, you are not supposed to have intent to immigrate to the US while on a TN. The job is supposed to be temporary. Of course, you can reapply for TNs (at least theoretically) as many times as you need to. Because you cannot have what's called "dual intent" while on a TN (dual intent means lawful status in the US as well as the intent to seek permanent resident status), you are not supposed to go from TN to green card. You have to apply for an H-1B first, then go for the green card.

However, some people have successfully obtained green cards while on TNs. The process for doing this requires that you actually leave the US and obtain the green card at a US consulate in Canada (this is called consular processing). I don't know much about what's involved; you would have to seek the advice of a lawyer on that front.

Also, the job would require travel outside the US (mainly to China). Would dh be able to do that on a TN visa?

You can travel outside the US while on a TN.

Would he apply for a TN Visa or H1-B?

He wouldn't, the company would.

It sounds like it takes a lot of time and effort to get an H1-B and I doubt the company would wait years, whereas a TN would go faster and we could go as TD.

A lot of companies know little about immigration, given the current job market in the US completing the labour certification for H-1B would be next to impossible I suspect, so TN-1 is the only real option.

However, the TN visa requires that you not intend to stay in the US.

You must be able to demonstrate the stay is "temporary", i.e. no more than three years. Given that few employment contracts are longer than that, it's generally not a problem. However you don't need to maintain proof of abode abroad like you do with most other categories, although you need evidence you intend to leave and residential ties to Canada obviously would help with that one (but that can create a tax problem).

There's no limit on how many times he can re-apply, i.e. when the three years is up he can apply again, whether he gets in or not is at the discretion of CBP (at a POE) or USCIS (if filed for on I-129). This is when still having the ties to Canada helps. Usually it is not a big deal to get it again, however there have been a few people on here with horror stories.

Does this mean that you cannot apply for a green card from a TN Visa?

TN-1 is not dual-status so the employer cannot file an I-140 for him, technically speaking, although in reality they can, they put down a Canadian address on it and use consular processing (once again, why the ties to Canada help). By the way TN-1 is not a visa, it's an entry category. There is no visa version of TN-1. Canadians usually do not need visas to enter in non-immigrant categories.

Can someone start as a TN just to get in, then switch to an H1-B?

Yes, the employer files an I-129 to change status. There are a lot of restrictions on H-1B though so it's generally not a good idea (quota, labour certification, proof of advancement, six years maximum validity, proof of competitive pay etc.), the only real advantage is that it is dual-status and you don't necessarily have to fit into a NAFTA job category, which isn't a problem for your husband from the sounds of it.

And just how difficult is it for an employer to prove that an American did not fit with what they wanted?

Not a problem with TN-1. NAFTA provides for freer movement of labour, that's one of the main provisions. It's a big problem with H-1B though.

This is a major US corporation. Also, the job would require travel outside the US (mainly to China). Would dh be able to do that on a TN visa?

Yes, not a problem, in fact it helps because it demonstrates he is not staying in the US. Taxes might get complicated though.