will switching to a non-dual intent visa status affect US green card?

June 11, 2014 11:08 AM

H1-B to TN-1 to GC? My actual immigration lawyer is suggesting that we use TN-1 status to bridge the gap between the end of my 6th year of H1-B and PERM approval. Will using a non-dual intent status to fill this gap negatively affect a future employment based green card application?

YANM immigration lawyers. I am in the sixth year of working in H1-B status and we didn't start PERM labour certification until recently (too late for H1-B extensions). I will have a visa gap of ~4-16 months between the end of my H1-B and PERM approval and the law firm is suggesting I go to TN-1. The lawyers indicate that filing PERM does not indicate immigrant intent, but I am concerned that switching to TN-1 may affect the future I-140/I-485 permanent residency applications. Will switching to a non-dual intent status like TN-1 be a problem when we file the I-140 petition and I-485 AOS for a green card (which we plan to do after PERM approval)? The law firm kind of glossed over this question when I asked.

I am also concerned that we may have a problem fitting my job into one of the TN-1 categories, but assuming the TN-1 is approved, will there be an issue with the GC application if the job category for TN-1 doesn't appear to closely match my job title?

posted by sockety puppety to Law & Government (3 answers total)

IAAL. It's your actual immigration lawyer's job, and, in fact, ethical obligation under several ethics/professionalism rules common to all the U.S. state bars, to answer these questions for you. Ask them again and more pointedly so they know it's something that's on your mind. Nobody is better situated to tell you the answer to a purely legal question like this than the lawyer who knows your particular facts inside and out.

If I found out a client of mine were asking questions about their case on AskMeFi instead of just calling me, I would be upset--not only for attorney-client privilege reasons but also because if they'd just have called me and asked me directly, I'd have happily answered the question or found someone who could. I would also be a bit upset with myself for glossing over the answer during the previous conversation.
posted by radicalawyer at 3:01 PM on June 11, 2014

I've done the TN thing, and it's at the discretion of the customs/immigration/border guard. Be prepared for the possibility that they might not like your H1B, or the colour of your hair, or whatever (as they did with me). Go to a different border crossing and you might get a nicer agent (like I did).
posted by blue_beetle at 3:53 PM on June 11, 2014 [1 favorite]

IANAL. your problem will be getting TN approved after filing your PERM. TN requires non-immigrant intent. Filing for green card signifies immigrant intent and is incompatible with TN.

Of course defer to your lawyers in this case and immigration practice may have changed since I went through this, but reverting to TN was just not the way things were done.

The biggest problem with TN is that it's adjudicated every time you cross the border. I would not plan on traveling outside the US in TN status in that visa state. I believe I was placed on travel blackout when my PERM was pending on TN and I couldn't leave the US for nearly a year, it was a mess.

I am surprised they didn't withdraw the PERM, bring you into the US on TN, then have you stay there while your PERM is approved. Then again, I'm also surprised they didn't file your PERM when you came in especially if you are EB3. If you are EB3 you won't be adjusting your status for years. Your employer really fucked you over on this one.

If you are very worried and your assigned corporate attorney is not responsive then get an independent consult, it's $300 for some peace of mind.
posted by crazycanuck at 9:11 PM on June 11, 2014