TN Visa: Changing from TN to H-1B May Be Beneficial in Certain Cases

Once your TN visa is approved, and you successfully enter the United States in TN status, there are certain situations in which it may be beneficial for you to eventually change status to H-1B. If you have questions about the TN or H-1B visa and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.

You may want to change status to H-1B if you want to have an immigrant visa petition (green card) filed on your behalf whether through employment or family. Certain green card processes such as the EB-3 classification, may take five years or longer before you will ultimately get your green card. Although TN status requires you to have nonimmigrant intent, having TN status will not prevent you from being the beneficiary of an immigrant visa petition filed on your behalf. However, once an immigrant visa petition is pending, any subsequent TN extension that you file would likely be denied because you have manifested immigrant intent by undergoing the green card process. The TN visa status is only good for a maximum of three years, and in the above situation, it is likely your TN status will run out before your immigrant visa petition is approved. However, the H-1B visa allows for dual intent, is valid for a maximum of six years, and is also valid beyond six years according to AC21 if you have an immigrant visa petition pending.

The next situation is in the case of international travel while you have an immigrant visa petition pending, even if your immigrant visa petition is likely to be approved long before your TN visa status expires and requires extension. Not only is your nonimmigrant intent evaluated when filing for a TN extension, it is also evaluated whenever you reenter into the US. Consequently, filing an immigrant visa petition and then traveling abroad in TN status will subject you to an inquiry about your nonimmigrant intent upon your return. Changing to H-1B status before departing the US will avoid this problem.

The third situation is when you have remained in the United States for several years in TN status. Although there is no limit to the number of three-year TN extensions you can apply for, the longer you have stayed in the US in TN status, the more difficult it will be for you to establish nonimmigrant intent. Each time you apply for an extension, it may be more difficult to convince the immigration or consular officer that your US entry is temporary and that you intend to depart the United States. Since the H-1B does not require nonimmigrant intent, you may want to consider changing status to H-1B. If you would like further information about the TN or H-1B visa or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.