PR rejected, still qualify for TN?

[jasonblenis]

Dear friends,

I have been working in USA as a statistician for almost 6 years (12-month fixed term but renew yearly). My application for green card (EB-1b) was rejected recently and my H1B is expiring. Can I still possibly get TN visa for the same job position?

Thanks a lot!

Peter

[agnelson]

Not likely, but it will require that your I-485 be completely cancelled by the time you go for TN.

I would be going for PERM at this point, in a lower category, recouping as much unused H1 time to get me thru the next year, and then using h1 extensions or EAD/AP in the future.

Any particular reason your EB-1B was denied?

[miguelramosv]

Dear friends,

I have been working in USA as a statistician for almost 6 years (12-month fixed term but renew yearly). My application for green card (EB-1b) was rejected recently and my H1B is expiring. Can I still possibly get TN visa for the same job position?

Thanks a lot!

Peter

agree with agnelson.. getting denied EB-1b is not the end of the world.. you should try for PERM on EB-2 (if you have a graduate degree) or 3.

You might even try to apply for an EB2 - NIW (national interest waiver.. which does not require PERM. Talk to a competent immigration attorney about your qualifications and get a recommendation.

[jasonblenis]

Thanks, agnelson and miguelramosv!

The I-140 petition was failed due to insufficient evidences to support this category of application. I may not have enough time to apply for EB2 or EB3 since there are only two months left in my H1B (extension) status. Therefore, TN may be the only choice for me. What I am really concerning are: (1) Will the immigration officer consider the failed petition as a strong evidence of immigrant intent and reject the TN application? (2) Since I work at this position for almost 6 years, will the officer consider this position as non-temporary? Or should I request my employer to re-category the job position using a different name?

Thanks a lot!
Peter

[agnelson]

I think we have already said a TN is doubtful, and should not be your fallback position.

... and don't forget, you can reclaim days spent outside US towards your H1 clock. You would need these to be allowed to get H1 extended to 7th year.

[miguelramosv]

Have you spoken with your lawyer about whether or not you qualify for an EB-2 National Interest Waiver) case? This may be a reasonable suggestion if you were close to qualifying for EB-1B (most likely you have a Ph.D)

You can file EB-2 NIW I-140 without going through the PERM process I think, and given your situation I think you may file for premium processing and get a decision within two weeks on it. Once your I-140 is approved, you can extend your H-1B as long as necessary.

Anyhow, speak to your lawyer about this! Good luck.

[CalGreenCard]

Have you spoken with your lawyer about whether or not you qualify for an EB-2 National Interest Waiver) case? This may be a reasonable suggestion if you were close to qualifying for EB-1B (most likely you have a Ph.D)

You can file EB-2 NIW I-140 without going through the PERM process I think, and given your situation I think you may file for premium processing and get a decision within two weeks on it. Once your I-140 is approved, you can extend your H-1B as long as necessary.

Anyhow, speak to your lawyer about this! Good luck.

An NIW isn't necessarily going to be approved because someone is "close" to having their EB-1 approved. Unless it can be clearly shown that making someone go through the labor certification process is detrimental to the national interest, their NIW is likely to be denied. If someone has extraordinary ability in their field, then USCIS can--and often does--make the point in NIW cases that if they are so smart, getting a labor certification approved shouldn't be a problem, so there is no need to approve the NIW.

OTOH if one is running out of time on H-1B, and TN is no longer an option, that might actually be a stronger basis for approving the NIW. If the USA is genuinely at risk of losing you completely, and it can be shown that that is not in the national interest (e.g. you are doing work for your employer that has a national impact beyond the narrow needs of you/your employer), then that might be one of the cases that gets approved.

But the actual level of ability for an NIW case doesn't need to be any higher than that of any other EB-2 candidate. There is often a fallacy associated with NIW where someone who is really smart comes along, has their NIW denied, and then everyone scratches their heads wondering how USCIS could possibly feel it is in the US national interest to deny such a smart person their green card.

Such a reaction is, however, based on a misunderstanding of the meaning of an NIW denial. An NIW denial just means that USCIS feels it is not in the national interest to bypass the labor certification step for this particular candidate. Such an outcome will always be the default decision unless a strong case as to why labor certification hurts the national interest is made.

[miguelramosv]

Agree with everything you said - my main point is simply that getting your EB-1B I-140 denied is not the end of the world and other avenues can be explored (including appeal... EB-2 NIW, etc) and that premium processing might apply. Jason, speak to your attorney about these options!