TN or H-1B?

[braffy 0]

Hi all,

Just stumbled across this great website, it's been very informative and seems so friendly so far! I'm in a bit of a unique situation and would appreciate some advice/feedback from the experts here.

I am a Canadian citizen married to a US citizen for 10 years. We've lived in Canada and (currently) the Netherlands but have never lived in the USA yet.

I just accepted a job offer at Harvard that will begin in Jan-Feb 2012. I have a PhD and will be working as a scientist. My wife and daughter can enter the country without difficulty by virtue of their US passports. Unfortunately starting now it will take too long to apply for a spousal visa before my job starts, so we were thinking of doing it after we arrived in the US.

I was originally planning to enter with a TN visa as it seemed to be the simplest and cheapest for a Canadian citizen for this type of job. However, I now realize that it might be a challenge to get approved for this at the border since I'm married to a US citizen, and are planning to apply for a spousal green card once in the country. I realize that this would seem to go against the spirit of the TN visa, as it is not a dual intent visa. However, the honest truth is that we have no specific intention to stay in the US once my 3-5 year job is completed, and that I would only be applying for a green card for convenience sake, and just in case we decided to stay longer.

Now I am wondering if it would be better to apply for a H-1B. Is this something that can be applied for at the border? What do I need my employer to do? What is the time frame? If I got a H-1B it's no problem to apply for a spousal green card right away, correct?

What do you think? TN or H-1B? Any advice would be greatly appreciated.

Thanks in advance

Edited October 13, 2011 by braffy

[Saddle Bronc 124]

Hi all,

Just stumbled across this great website, it's been very informative and seems so friendly so far! I'm in a bit of a unique situation and would appreciate some advice/feedback from the experts here.

I am a Canadian citizen married to a US citizen for 10 years. We've lived in Canada and (currently) the Netherlands but have never lived in the USA yet.

I just accepted a job offer at Harvard that will begin in Jan-Feb 2012. I have a PhD and will be working as a scientist. My wife and daughter can enter the country without difficulty by virtue of their US passports. Unfortunately starting now it will take too long to apply for a spousal visa before my job starts, so we were thinking of doing it after we arrived in the US.

I was originally planning to enter with a TN visa as it seemed to be the simplest and cheapest for a Canadian citizen for this type of job. However, I now realize that it might be a challenge to get approved for this at the border since I'm married to a US citizen,

Right there your red-flag when you try to go through POE (or PFI--the 9 Canuck airports which handle most traffic to US, or Dublin/Shannon both in Ireland); Imm Officers are likely to assume immigrant intent and deny you.

and are planning to apply for a spousal green card once in the country. I realize that this would seem to go against the spirit of the TN visa, as it is not a dual intent visa. However, the honest truth is that we have no specific intention to stay in the US once my 3-5 year job is completed, and that I would only be applying for a green card for convenience sake, and just in case we decided to stay longer.

Now I am wondering if it would be better to apply for a H-1B. Is this something that can be applied for at the border? What do I need my employer to do? What is the time frame? If I got a H-1B it's no problem to apply for a spousal green card right away, correct?

What do you think? TN or H-1B? Any advice would be greatly appreciated.

Thanks in advance

H-1b generally cannot be issued at the border (but can be done by mail once you are in the country--idea availed of lots by Canadians entering on TN-1)--you will need to go to consulate (but for H-4 the derivative dependent visa, border app OK).

With any temp work visa (including TN-1) once you are inside the country, you can apply for spousal GC (note: with TN-1 you should not leave the US once you have submitted I-485, until you receive your Advance Parole--or you will have a hard time re-entering).

I am an erstwhile Canadian citizen--renounced in 2008 due to Clearance issues--and originally entered the US on a TN-1, got GC (at Montreal Consulate, 1999/12/13) through labour-cert and naturalised after 5 years on GC (completed 2005/04/25).

Edited October 13, 2011 by Saddle Bronc

[Boiler 43,604]

I would have thought H1b, but it is down to what your Employer will do. Have you spoken with them?

[braffy 0]

...Imm Officers are likely to assume immigrant intent and deny you.

This is exactly what I was afraid of... 'likely deny you' sounds pretty grim.

H-1b generally cannot be issued at the border (but can be done by mail once you are in the country--idea availed of lots by Canadians entering on TN-1)--you will need to go to consulate (but for H-4 the derivative dependent visa, border app OK).

I thought I read somewhere that Canadians don't need to go to the consulate for the visa, only show up with the completed paperwork (including approved I-797, employers letter etc) and USCIS can process it at the border... not true?

I would have thought H1b, but it is down to what your Employer will do. Have you spoken with them?

Yes, they are willing to do the H1b but when I mentioned the TN they preferred that since it's cheaper than the H1b and more likely to be ready on time. At this point they will probably need to pony up the extra $1000 for an expedited H1b.

Thanks for your valuable responses so far, keep 'em coming!

[Harsh_77 716]

Either TN or H1 you are going to run into the issue of being married to USC and your Husband and daughter moving same time back to US.

Your chances ot TN or H1 might be higher if your husband and daughter were going to stay in Netherlands while you just came for work.

[braffy 0]

Either TN or H1 you are going to run into the issue of being married to USC and your Husband and daughter moving same time back to US.

Your chances ot TN or H1 might be higher if your husband and daughter were going to stay in Netherlands while you just came for work.

I'm confused... I was under the impression that the H-1b is a "dual intent" visa, while the TN is not. I took this to mean that entering with a H-1b with the possible intent of eventually applying for a GC would be fine.

If that's not the case, what visa should my employer apply for to get someone like me into the country to work? It's almost like I'm being discriminated against on the basis of being married to a USC!

[Boiler 43,604]

My understanding as well.

[Harsh_77 716]

I'm confused... I was under the impression that the H-1b is a "dual intent" visa, while the TN is not. I took this to mean that entering with a H-1b with the possible intent of eventually applying for a GC would be fine.

If that's not the case, what visa should my employer apply for to get someone like me into the country to work? It's almost like I'm being discriminated against on the basis of being married to a USC!

you are right H1b is dual intent, but that is for someone who is not already married to USC. At that point it is considred dual intent in your case you are already married to USC.

For you to get a H1B would be practically impossible, best option for you is to go thru CR1.

In cases where one is married to USC where someone is immediately eligible to file for AOS or GC all other visas are practially impossible to get as embassy consideres this as your way of circumventing the CR1 process and thus skipping the line.

[Boiler 43,604]

I have seen those married to a USC get a L, I do not see why a H would be different?

[Harsh_77 716]

I have seen those married to a USC get a L, I do not see why a H would be different?

L might work Same way B1 might work too, I myself had B1 while CR1 was in process, normally COs see them as you are working for existing employeer and you are required to travel for your work and your employeer applied for L or B1 for you as they need you for work.

In case of a new H1 where you are quitting your old job and going for this new position as this time CO puts into the equation petiontier was aware of his status and situation and should had known to apply for CR1 and then look for job and not look for job first and then apply for H1 and skip the CR1 process and application time.

[braffy 0]

petiontier was aware of his status and situation and should had known to apply for CR1 and then look for job and not look for job first and then apply for H1 and skip the CR1 process and application time.

1. I just accepted the job offer 2 weeks ago and the job starts Feb 1 2012. Not enough time to do the IR1 application which takes 6+ months to complete. We had no intentions of moving to USA until this job offer came up.

2. My understanding of IR1 process is that the sponsor (my wife) should be living in USA at the time she files the I-130. She hasn't lived in the USA for 15 years (since before we met) so I don't even think she is eligible to do so, unless/until she is living there again.

3. Currently we have no particular desire to live in the USA permanently; we are only considering filing the IR1 to avoid future immigration paperwork and increase our flexibility to change jobs.

4. What do you mean by "skip the CR1 process and application time"? If I want the green card I need to go through the process regardless of whether I'm in the US or outside the US... the process is the same isn't it?

5. I definitely qualify for H-2B status. High level education, specialized job, working at a university (thus no quota). Since the H-2B visa is dual intent, why should the CO care whether my wife is a US citizen or not? If I qualify for the visa and my employer has filled out the forms and paid the fees, I don't understand what could be the problem here?

Edited October 17, 2011 by braffy

[Harsh_77 716]

1. I just accepted the job offer 2 weeks ago and the job starts Feb 1 2012. Not enough time to do the IR1 application which takes 6+ months to complete. We had no intentions of moving to USA until this job offer came up. - Yes but before accpeting the position you were aware of the situation. During your application and interview you must have told them something if you need a sponsorship or not.

2. My understanding of IR1 process is that the sponsor (my wife) should be living in USA at the time she files the I-130. She hasn't lived in the USA for 15 years (since before we met) so I don't even think she is eligible to do so, unless/until she is living there again. - No infact you can file soemthing called DCF where USC does not have to live in US, in most cases this goes faster then IR1/CR1.

3. Currently we have no particular desire to live in the USA permanently; we are only considering filing the IR1 to avoid future immigration paperwork and increase our flexibility to change jobs. - Are you signing an agreement you would not change your mind and would leave the country when job is up? So how do you communicat this to CO? There is no way CO would buy this argument.

4. What do you mean by "skip the CR1 process and application time"? If I want the green card I need to go through the process regardless of whether I'm in the US or outside the US... the process is the same isn't it? - When you apply for H1b you as shortneing the time to enter US from 7-8 months to couple months. As per most CO it would be an attempt to enter US on fast track.

5. I definitely qualify for H-2B status. High level education, specialized job, working at a university (thus no quota). Since the H-2B visa is dual intent, why should the CO care whether my wife is a US citizen or not? If I qualify for the visa and my employer has filled out the forms and paid the fees, I don't understand what could be the problem here? - You can try and argue unfortunately it does not work that way, when it says dual intent it means potentially this person might immigrate to US. In your case CO can say you have 100% intent to immigrate and hence you should go for IR1 / CR1.

[Boiler 43,604]

H2b?

And the issue is domicile as far as your wife is concerned.

[braffy 0]

H2b?

Sorry, the reason for all the CR1/IR1 talk is that Harsh77 insists that they won't let me in the country on an H2b since I'm eligible to apply for an IR1 through my wife. I still have a hard time believing that. Basically that means if you're married to anyone but a USC (or not married at all) you're eligible for an H2b and can be working within a month or two, but if you happen to be married to a USC then you're accused of cutting the line and you need to wait 6-12 months? Doesn't make much sense to me...

And the issue is domicile as far as your wife is concerned.

You're right about domicile. In this case as soon as we knew we'd be moving to the US she'd be able to apply for the IR1. (she would have a hard time arguing domicile any other way).

[Harsh_77 716]

Sorry, the reason for all the CR1/IR1 talk is that Harsh77 insists that they won't let me in the country on an H2b since I'm eligible to apply for an IR1 through my wife. I still have a hard time believing that. Basically that means if you're married to anyone but a USC (or not married at all) you're eligible for an H2b and can be working within a month or two, but if you happen to be married to a USC then you're accused of cutting the line and you need to wait 6-12 months? Doesn't make much sense to me...

You're right about domicile. In this case as soon as we knew we'd be moving to the US she'd be able to apply for the IR1. (she would have a hard time arguing domicile any other way).

You can ask your employer to file for H2B and once your petition is approved do an interview. I am saying what would happen in most cases, yes being married to USC has its pros and cons.

you can give a try.