TN to H1B eligibility

I was in USA on H1B from March 99 to Nov 2004 and then moved to Canada. I entered in USA on TN on May 2010. Now my company wants to transfer me to H1B.

I got reply from company's lawyer (one of the big law firm) saying that I am not eligible for H1B because of me being on TN, H1B clock does not reset and the requirement is that the 365 days is immediately preceding the application for the H1B cap case, the intervening trip to the US on TN status may have caused you to lose your H1B eligibility.

I strongly believe that I am eligible for H1B visa but other than forum I am not able to find some kind of document or article on it to prove it.

Am I eligible for new H1B?

The lawyer is dead wrong. That would mean never being able to be in US before getting H1.

Not only are you eligible for H1, you should not even be subject to cap, since you did not use your full H1 6-year limit in the past. You could get a 6-month h1 to use up your clock!

But, even if you don't want that, the period from 2004 to 2010 was more than sufficient to reset your clock. You would be cap subject however.


Check with another lawyer.

Thanks agnelson for quick reply.

-- Thu Jan 27, 2011 5:51 pm --

If I get H1B from new quota, Will I get H1B for full six years or TN time will be deducted?

Full six years. TN has nothing to do with H1.

Aarya,

You are eligible for the H-1B since you left the country for more than 1 year. I suggest you prepare your application for the H-1B asap since new applications are being accepted as of April 1st.

Cedric M. Shen
U.S. Immigration Attorney
MAXIMILIAN LAW INC.
3424 Wilshire Blvd, Suite 928
Los Angeles, California 90010
(888) 228-4525 [toll free]
maxlawinc.com

I'm on a TN since Oct 2006. My last TN is good for 3 years and expires on Jan 2012. I just got an I-797A approval letter from my HR (March 2011) that says my application for H1B has been approved. This letter has an I-94 departure record at the bottom of the page and says that the H1B visa will expire on Oct 2013.

1. Am I still on a TN or H1B? Does the border automatically knows?
2. Do I have to go to the border and tell the USA border that my H1B visa application was approved? No hassle driving, I live in Seattle.
3. We go back to Canada at least once a month, how will this affect my travel? Can I still leave the US from time to time?
4. My wife and daughter was approved as my dependent too, their class is H4. They are still on a TD under my name. Do I have to take them to the border with me?

Thanks for the help.
Joel

1. Does the I-797 say when the H1 was effective. It would seem to be that your employer asked for less than 3 years, which is strange. In any event, you are in H1 immediatel;y. Your HR needs to update your I-9 to reflect this, and you need to staple the I-94 to your existeing one.

The border is not USCIS, but CBP will know when you cross and show themn your new I-94,

2. Nope. This has nothing tio do with CBP.

3. Of course. And you can get back into US too!

4. They became H4 automatically as well, they need to staple their I-94s to ther TD's\d.

The TDs and TN are dead.