Teich

Greetings. I am a Canadian citizen who is working in the US on a TN
visa. My company has just filed the I-140 and I-485 concurrently on
my behalf (using the EB-1-2 category).

My TN visa is due to expire in July. In the meanwhile, I got a new
H1-B visa approved, but it will "kick in" only in July (when my TN
expires).

My question is -- can I leave and re-enter the US using my TN visa
(before my H1-B kicks in)?

Thanks in advance,
Teich

P.S. I know, in retrospect, I should have demanded that my H1-B to
start ASAP. Oh well.

Roger Xing

Using your TN or H1-B doesn't matter. You can use either of both on
leaving and entering US.


[email protected] (Teich) wrote in message news:...
    > Greetings. I am a Canadian citizen who is working in the US on a TN
    > visa. My company has just filed the I-140 and I-485 concurrently on
    > my behalf (using the EB-1-2 category).
    >
    > My TN visa is due to expire in July. In the meanwhile, I got a new
    > H1-B visa approved, but it will "kick in" only in July (when my TN
    > expires).
    >
    > My question is -- can I leave and re-enter the US using my TN visa
    > (before my H1-B kicks in)?
    >
    > Thanks in advance,
    > Teich
    >
    > P.S. I know, in retrospect, I should have demanded that my H1-B to
    > start ASAP. Oh well.

S B

Teich wrote:
    >
    > Greetings. I am a Canadian citizen who is working in the US on a TN
    > visa. My company has just filed the I-140 and I-485 concurrently on
    > my behalf (using the EB-1-2 category).
    >
    > My TN visa is due to expire in July. In the meanwhile, I got a new
    > H1-B visa approved, but it will "kick in" only in July (when my TN
    > expires).
    >
    > My question is -- can I leave and re-enter the US using my TN visa
    > (before my H1-B kicks in)?
    >
    > Thanks in advance,
    > Teich
    >
    > P.S. I know, in retrospect, I should have demanded that my H1-B to
    > start ASAP. Oh well.

What do you mean "doesn't kick in"? Do you mean that your H1B was
issued with an employment approval only without an I-94 attached? If
so, you would have to go to the CDN border to "activate" as it were,
your H1B. This you can do at any time once the approval is issued.

Sylvia Ottemoeller

"Teich" wrote in message
news:[email protected]...

    > Greetings. I am a Canadian citizen who is working in the US on a TN
    > visa. My company has just filed the I-140 and I-485 concurrently on
    > my behalf (using the EB-1-2 category).
    > My TN visa is due to expire in July. In the meanwhile, I got a new
    > H1-B visa approved, but it will "kick in" only in July (when my TN
    > expires).
    > My question is -- can I leave and re-enter the US using my TN visa
    > (before my H1-B kicks in)?

No, unless you have advance parole and an EAD. If you leave the U.S.
without having obtained advance parole, you will abandon the I-485 by the
action of departure. If you have the advance parole and do not have the
EAD, and leave and return, you cannot be on the payroll because you will not
have work authorization. You will not hold TN status, as your I-94 will
indicate "parole," and you will not yet have H status.

    > Thanks in advance,
    > Teich
    > P.S. I know, in retrospect, I should have demanded that my H1-B to
    > start ASAP. Oh well.

Teich

"Sylvia Ottemoeller" wrote in message news:...
    > "Teich" wrote in message
    > news:[email protected]...
    >
    > > Greetings. I am a Canadian citizen who is working in the US on a TN
    > > visa. My company has just filed the I-140 and I-485 concurrently on
    > > my behalf (using the EB-1-2 category).
    > >
    > > My TN visa is due to expire in July. In the meanwhile, I got a new
    > > H1-B visa approved, but it will "kick in" only in July (when my TN
    > > expires).
    > >
    > > My question is -- can I leave and re-enter the US using my TN visa
    > > (before my H1-B kicks in)?
    >
    > No, unless you have advance parole and an EAD. If you leave the U.S.
    > without having obtained advance parole, you will abandon the I-485 by the
    > action of departure. If you have the advance parole and do not have the
    > EAD, and leave and return, you cannot be on the payroll because you will not
    > have work authorization. You will not hold TN status, as your I-94 will
    > indicate "parole," and you will not yet have H status.

Sylvia:

Thanks for your excellent advice. I ended up consulting with an
immigration lawyer who advised me similarly. Because my H-1B has a
start date in mid July, she advised me *not* to travel out of the US
until I have both the Advance Parole (AP) and the H-1B.

She also mentioned that when I re-enter the US in the future (of
course after mid July), I should try to use the H-1B and not the AP,
since my I-140 petition is still pending.

Again, thanks very much for your help.

Teich

Ingo Pakleppa

On Wed, 30 Apr 2003 18:45:53 -0700, Teich wrote:

    > "Sylvia Ottemoeller" wrote in message
    > news:...
    >> "Teich" wrote in message
    >> news:[email protected]...
    >>
    >> > Greetings. I am a Canadian citizen who is working in the US on a TN
    >> > visa. My company has just filed the I-140 and I-485 concurrently on
    >> > my behalf (using the EB-1-2 category).
    >> >
    >> > My TN visa is due to expire in July. In the meanwhile, I got a new
    >> > H1-B visa approved, but it will "kick in" only in July (when my TN
    >> > expires).
    >> >
    >> > My question is -- can I leave and re-enter the US using my TN visa
    >> > (before my H1-B kicks in)?
    >>
    >> No, unless you have advance parole and an EAD. If you leave the U.S.
    >> without having obtained advance parole, you will abandon the I-485 by
    >> the action of departure. If you have the advance parole and do not
    >> have the EAD, and leave and return, you cannot be on the payroll
    >> because you will not have work authorization. You will not hold TN
    >> status, as your I-94 will indicate "parole," and you will not yet have
    >> H status.
    >
    > Sylvia:
    >
    > Thanks for your excellent advice. I ended up consulting with an
    > immigration lawyer who advised me similarly. Because my H-1B has a
    > start date in mid July, she advised me *not* to travel out of the US
    > until I have both the Advance Parole (AP) and the H-1B.
    >
    > She also mentioned that when I re-enter the US in the future (of course
    > after mid July), I should try to use the H-1B and not the AP, since my
    > I-140 petition is still pending.

That is actually quite interesting. I wonder what her reasoning is for
that? I don't see any reason for using one or the other.

Do be aware that if you use A/P to return to the US, you'll also need an
EAD in order to work.

Teich

"Ingo Pakleppa" wrote in message news:...
    > On Wed, 30 Apr 2003 18:45:53 -0700, Teich wrote:
    >
    > > "Sylvia Ottemoeller" wrote in message
    > > news:...
    > >> "Teich" wrote in message
    > >> news:[email protected]...
    > >>
    > >> > Greetings. I am a Canadian citizen who is working in the US on a TN
    > >> > visa. My company has just filed the I-140 and I-485 concurrently on
    > >> > my behalf (using the EB-1-2 category).
    > >> >
    > >> > My TN visa is due to expire in July. In the meanwhile, I got a new
    > >> > H1-B visa approved, but it will "kick in" only in July (when my TN
    > >> > expires).
    > >> >
    > >> > My question is -- can I leave and re-enter the US using my TN visa
    > >> > (before my H1-B kicks in)?
    > >>
    > >> No, unless you have advance parole and an EAD. If you leave the U.S.
    > >> without having obtained advance parole, you will abandon the I-485 by
    > >> the action of departure. If you have the advance parole and do not
    > >> have the EAD, and leave and return, you cannot be on the payroll
    > >> because you will not have work authorization. You will not hold TN
    > >> status, as your I-94 will indicate "parole," and you will not yet have
    > >> H status.
    > >
    > > Sylvia:
    > >
    > > Thanks for your excellent advice. I ended up consulting with an
    > > immigration lawyer who advised me similarly. Because my H-1B has a
    > > start date in mid July, she advised me *not* to travel out of the US
    > > until I have both the Advance Parole (AP) and the H-1B.
    > >
    > > She also mentioned that when I re-enter the US in the future (of course
    > > after mid July), I should try to use the H-1B and not the AP, since my
    > > I-140 petition is still pending.
    >
    > That is actually quite interesting. I wonder what her reasoning is for
    > that? I don't see any reason for using one or the other.

Her reason, as well as advice from other immigration firms, for
prefering to use the H-1B is that in case my I-140 is ultimately
denied (a possible outcome with concurrent filing), I can keep my H-1B
status and continue to work. Otherwise, I will lose my "adjustment of
status pending" and be out of status right away.

    > Do be aware that if you use A/P to return to the US, you'll also need an
    > EAD in order to work.

I see. However, she disagrees with you and with Sylvia -- she
believes that I can continue to use my H-1B after I use the AP. She
said that the "March 14, 2000 Bach memorandum from INS stated in no
uncertain terms that an H-1 nonimmigrant who travels abroad and is
paroled in using an advance parole may still be eligible to apply for
an extension of an H (assuming the underlying H was valid)."

She then continues on to say that, "to the best of (her) knowledge the
Bach memo has not been withdrawn or superceded. Oviously, in the
event that it becomes necessary to file anything for you, we will have
to cite this memo as the basis for our position."

Anyway, I have also applied for an EAD.

Sylvia Ottemoeller

"Teich" wrote in message
news:[email protected]...

    > "Ingo Pakleppa" wrote in message
news:...

    > > On Wed, 30 Apr 2003 18:45:53 -0700, Teich wrote:

    > > > "Sylvia Ottemoeller" wrote in message
    > > > news:...

    > > >> "Teich" wrote in message
    > > >> news:[email protected]...

    > > >> > Greetings. I am a Canadian citizen who is working in the US on a
TN
    > > >> > visa. My company has just filed the I-140 and I-485 concurrently
on
    > > >> > my behalf (using the EB-1-2 category).
    > > >> >
    > > >> > My TN visa is due to expire in July. In the meanwhile, I got a new
    > > >> > H1-B visa approved, but it will "kick in" only in July (when my TN
    > > >> > expires).
    > > >> >
    > > >> > My question is -- can I leave and re-enter the US using my TN visa
    > > >> > (before my H1-B kicks in)?
    > > >>
    > > >> No, unless you have advance parole and an EAD. If you leave the U.S.
    > > >> without having obtained advance parole, you will abandon the I-485 by
    > > >> the action of departure. If you have the advance parole and do not
    > > >> have the EAD, and leave and return, you cannot be on the payroll
    > > >> because you will not have work authorization. You will not hold TN
    > > >> status, as your I-94 will indicate "parole," and you will not yet
have
    > > >> H status.
    > > >
    > > > Sylvia:
    > > >
    > > > Thanks for your excellent advice. I ended up consulting with an
    > > > immigration lawyer who advised me similarly. Because my H-1B has a
    > > > start date in mid July, she advised me *not* to travel out of the US
    > > > until I have both the Advance Parole (AP) and the H-1B.
    > > >
    > > > She also mentioned that when I re-enter the US in the future (of
course
    > > > after mid July), I should try to use the H-1B and not the AP, since my
    > > > I-140 petition is still pending.
    > >
    > > That is actually quite interesting. I wonder what her reasoning is for
    > > that? I don't see any reason for using one or the other.
    > Her reason, as well as advice from other immigration firms, for
    > prefering to use the H-1B is that in case my I-140 is ultimately
    > denied (a possible outcome with concurrent filing), I can keep my H-1B
    > status and continue to work. Otherwise, I will lose my "adjustment of
    > status pending" and be out of status right away.
    > > Do be aware that if you use A/P to return to the US, you'll also need an
    > > EAD in order to work.
    > I see. However, she disagrees with you and with Sylvia -- she
    > believes that I can continue to use my H-1B after I use the AP.

I agree with the attorney on this point. My point was made in answer to
your specific question: "can I leave and re-enter the US using my TN visa
(before my H1-B kicks in)?" Clearly, you could not continue to use your TN
after you use the AP.

She
    > said that the "March 14, 2000 Bach memorandum from INS stated in no
    > uncertain terms that an H-1 nonimmigrant who travels abroad and is
    > paroled in using an advance parole may still be eligible to apply for
    > an extension of an H (assuming the underlying H was valid)."
    > She then continues on to say that, "to the best of (her) knowledge the
    > Bach memo has not been withdrawn or superceded. Oviously, in the
    > event that it becomes necessary to file anything for you, we will have
    > to cite this memo as the basis for our position."
    > Anyway, I have also applied for an EAD.

Ingo Pakleppa

On Thu, 01 May 2003 01:19:18 -0700, Teich wrote:

    > "Ingo Pakleppa" wrote in message news:...
    >> On Wed, 30 Apr 2003 18:45:53 -0700, Teich wrote:
    >>
    >> > "Sylvia Ottemoeller" wrote in message
    >> > news:...
    >> >> "Teich" wrote in message
    >> >> news:[email protected]...
    >> >>
    >> >> > Greetings. I am a Canadian citizen who is working in the US on a TN
    >> >> > visa. My company has just filed the I-140 and I-485 concurrently on
    >> >> > my behalf (using the EB-1-2 category).
    >> >> >
    >> >> > My TN visa is due to expire in July. In the meanwhile, I got a new
    >> >> > H1-B visa approved, but it will "kick in" only in July (when my TN
    >> >> > expires).
    >> >> >
    >> >> > My question is -- can I leave and re-enter the US using my TN visa
    >> >> > (before my H1-B kicks in)?
    >> >>
    >> >> No, unless you have advance parole and an EAD. If you leave the U.S.
    >> >> without having obtained advance parole, you will abandon the I-485 by
    >> >> the action of departure. If you have the advance parole and do not
    >> >> have the EAD, and leave and return, you cannot be on the payroll
    >> >> because you will not have work authorization. You will not hold TN
    >> >> status, as your I-94 will indicate "parole," and you will not yet have
    >> >> H status.
    >> >
    >> > Sylvia:
    >> >
    >> > Thanks for your excellent advice. I ended up consulting with an
    >> > immigration lawyer who advised me similarly. Because my H-1B has a
    >> > start date in mid July, she advised me *not* to travel out of the US
    >> > until I have both the Advance Parole (AP) and the H-1B.
    >> >
    >> > She also mentioned that when I re-enter the US in the future (of course
    >> > after mid July), I should try to use the H-1B and not the AP, since my
    >> > I-140 petition is still pending.
    >>
    >> That is actually quite interesting. I wonder what her reasoning is for
    >> that? I don't see any reason for using one or the other.
    >
    > Her reason, as well as advice from other immigration firms, for
    > prefering to use the H-1B is that in case my I-140 is ultimately
    > denied (a possible outcome with concurrent filing), I can keep my H-1B
    > status and continue to work. Otherwise, I will lose my "adjustment of
    > status pending" and be out of status right away.
    >
    >> Do be aware that if you use A/P to return to the US, you'll also need an
    >> EAD in order to work.
    >
    > I see. However, she disagrees with you and with Sylvia -- she
    > believes that I can continue to use my H-1B after I use the AP. She
    > said that the "March 14, 2000 Bach memorandum from INS stated in no
    > uncertain terms that an H-1 nonimmigrant who travels abroad and is
    > paroled in using an advance parole may still be eligible to apply for
    > an extension of an H (assuming the underlying H was valid)."
    > She then continues on to say that, "to the best of (her) knowledge the
    > Bach memo has not been withdrawn or superceded. Oviously, in the
    > event that it becomes necessary to file anything for you, we will have
    > to cite this memo as the basis for our position."

When A/P was the only way to travel, INS policy was clear: the H-1B work
authorization continues. The memo that you are citing seems to just
indicate that the non-immigrant can get back into H-1B status. But until
he actually files for an extension, does he have work authorization based
on the H-1B? I don't think this is completely clear, although in practical
terms I would not expect problems.

Her point re. keeping your H-1B if your I-485 is denied is well taken.