TN Visa FAQs

Watch the Video on this FAQ: TN applying for green card

Video Transcript:

Typically what happens is TN does not allow you to have the intention to file a green card, so if you are a TN visa holder or a TD visa holder and a green card is applied for you, you can have trouble reentering the USA after the application or applying for extensions of TN within the USA. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Current immigration/visa options for entrepreneurs

Video Transcript

A few options for Entrepreneurial Visas:

You could come in on E visa, H visa, O visa or TN visa and eventually get a green card based upon various other options including EB-1A if you are extraordinary qualified individual or EB-5 if you are making the required amount of investment and creating the jobs necessary under the rule. 

You can also come in through L-1A if you have a foreign company you have worked outside for that company for at least one year as an executive or managerial employee, you can start a company or buy a company in the United States and transfer yourself or your key managerial employees or employee to the USA. L-1 is the fastest way of getting a green card because L-1 is potentially processed within a few weeks because you can file premium processing and once you are in the USA you can file a EB-1 based green card which will get you seen through the process normally within a year, sometimes as little as three to five months. More ...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/Gl2WiBEALtk?t=68

FAQ Transcript:

A TN can be set up in one of the two ways. Either a US employer directly offers employment to a professional from Canada or Mexico, and they come in as a Treaty National. So direct employment, simplest case W2. They are a full employee of the company, US employer, so that part is easy to understand.

The second way to set up a TN if for e.g.  there is a company in Canada, there is a company in USA, the company in USA contracts with the company in Canada, and it says you send employee xyz to us to work, and we will pay you and you pay the employees the salary. In that case the US company is sending out a 1099 to the Canadian company. Another easy one to understand.

Problematic cases are those were the Canadian worker is being sponsored by the US company and the US company wants to put them on a 1099. I think that is not a good idea. Lot of employers have said as long as employer employee relationship exists you can file a 1099 and that to me is a little short-sighted. Reason being because the difference between an independent contractor and an employee is the degree of control. If you are maintaining control as an employer, then IRS could get you in trouble. IRS could say you should be putting this person on W2, deducting their social security taxes, other benefits, you have to put them on W2, you can’t have them on 1099. So remember you have to balance control under immigration law, with control under taxation laws otherwise you could get into a lot of trouble. 

Short answer I don’t know how you can comply with US laws when a TN worker works on a 1099 on a US sponsored job.

1. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The L-1 nonimmigrant classification - Intracompany Transferee Executive or Manager – enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the U.S. with the purpose of establishing one.

2. Canadian citizens can continue to apply for TN and L classifications at U.S. ports of entry or U.S. preclearance facilities with the required documentation.

3. No, you may continue to go to any port of entry along the Canadian border for processing; however, we encourage you to go to one of the designated ports of entry where you will receive optimized processing.

4. Fourteen total ports are designated, to include 4 preclearance locations.

For more information please visit this page: http://www.cbp.gov/travel/international-visitors/canada-mexico-travel/t…

Check with USCIS customer service, but my guess is if you travel outside the US while the EAD is pending, the EAD application is abandoned and would have to be refiled. The only reason I have some doubt that I am correct is because J-2 work authorization is a granted right, legally called "incidental to status.

U.S. Customs and Border Patrol (CBP) indicates that, due to the fact that Sales Engineer or engineering manager is not among the professions listed in Appendix 1603.D.1, such an individual would not be approved for the TN classification.

U.S. Customs and Border Patrol (CBP) indicates that, as per section 8 CFR 214.6, an applicant seeking admission as a NAFTA professional shall demonstrate business activity at a professional level in one of the professions set forth in Appendix 1603.D.1 to Annex 1603.Therefore, the profession, or job title, of the applicant that is stated on the employment letter must be one of the professions listed in Appendix 1603.D.1, regardless of the duties described in the employer’s statement.

U.S. Customs and Border Patrol (CBP) indicates that, in instances in which an officer refuses to admit a TN applicant for the period of employment up to three years, the applicant can ask to speak to the Supervisory CBP Officer who is assigned to the area in which the inspection took place. If this does not occur, an inquiry with the Special Cases Office could be initiated in order to have the admission reviewed.

U.S. Customs and Border Patrol (CBP) indicates that this is true. A Mexican citizen TN nonimmigrant applicant for admission whose passport is valid for the requested admission period, and who is in possession of an employment letter confirming the employment period of up to 3 years, should be admitted for a 3-year admission period.

U.S. Customs and Border Patrol (CBP) indicates that a Mexican citizen with a valid TN visa, if otherwise admissible, may be admitted as a TN for up to three years, if applicable, provided that the applicant’s passport remains valid during the duration of that period of time.

She has to get a TD visa through a US consulate (either Bangladesh or Canada is ok). It should be a relatively short process -- from same-day to a few weeks, depending upon what the consulate needs. We do not practice Canadian law, so I do not know what you can do on the Canadian side, but US immigration laws have no problem with you applying for her Canadian immigration while on TN/TD.

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

You can switch back to TN. To correct slightly, you do not automatically get switched to an H-4 (not H-2).

NAFTA clearly implies that you do not need a license (if you work under a licensed pharmacist).

Pharmacist—baccalaureate degree, licenciatura degree, or state/provincial license.

I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.

Do not be alarmed. If you are a US citizen, there should be no issues.