Moving to Canada from USA with Approved I140

[harirajmohan]

Thankyou Hari. So when you say file amendment for location B , should i need to be inside US to get it approved? It doesnt matter right? Because of the wait times not sure how long would it take unless i file it in premium.

I know in this case i cannot use AVR anymore as it would definitely take more than 30days.

To get I94 extended:
If you need I94 to be extended then its safe play to be there. Worst case you can be outside. I dont know with the existing I94 if they would extend or not, since you dont have visa you wont be able to reenter without visa.

Without I94 extended:
1. If you are not worried about reentry sooner then you just need to be there for one full day when the file reaches(make sure it reaches on working day and you are here in the US - possibly just stay that night and then depart next day).

2. Actually another simple method is to file for consular processing without even being in US.

 

[swan0206]

2. Actually another simple method is to file for consular processing without even being in US.

Thanks Hari. ok, if i want to go for consular processing, is it same like booking a visa slot and wait for it or consular processing has any advantage of going for an interview, inspite of consulates not honoring regular appointments right now?

Also if theres a gap in starting my project, like 15 days or 30days gap how does it affect my status/payroll, if i am outside?

 

[harirajmohan]

Thanks Hari. ok, if i want to go for consular processing, is it same like booking a visa slot and wait for it or consular processing has any advantage of going for an interview, inspite of consulates not honoring regular appointments right now?

Also if theres a gap in starting my project, like 15 days or 30days gap how does it affect my status/payroll, if i am outside?

Consular processing = No I94 extension.
No other difference. You have to go to consulate to get stamping to use your petition for work since you cant enter US without stamping anyway.

Status/payroll is not affected while you are outside since you are to be paid only for the period of US stay as per labor rules. So there wont be a problem.

 

[canprofus]

Consular processing = No I94 extension.
No other difference. You have to go to consulate to get stamping to use your petition for work since you cant enter US without stamping anyway.

Status/payroll is not affected while you are outside since you are to be paid only for the period of US stay as per labor rules. So there wont be a problem.

are you sure about this? if someone gets extension through consular i797 without i94 and waits to get stamp from outside US, how can employer run payroll? employers need to extend i9 to keep someone continuously employed. in order to extend i9, they need valid i94. so, payroll will be impacted right.

check this document list to extending i9. Valid i94 is a must to do it which is not possible for consular approved cases waiting to do stamping.

https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents

 

[harirajmohan]

are you sure about this? if someone gets extension through consular i797 without i94 and waits to get stamp from outside US, how can employer run payroll? employers need to extend i9 to keep someone continuously employed. in order to extend i9, they need valid i94. so, payroll will be impacted right.

check this document list to extending i9. Valid i94 is a must to do it which is not possible for consular approved cases waiting to do stamping.

https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents

That specific note is for swan0206's case as he/she may not be in a situation to find the job on time while being inside US and may not be the situation to be inside US till processing completes.

For your query:
There is no "must to do" or "must not" on filing H1. One opts for consular processing if candidate is outside while filing, if not they will request for extending it. Not everyone is being inside US. I was in Australia in 2014 when i got my H1 approved for 2014 for the remaining H1 period. I traveled on earlier visa but with new I797. This kind of situation is not new.

I94: You need valid I94 for staying inside the country legally and for the foreigners inside the country. US labor laws for local recruitment and anyone can get money from US companies in USD either as an employee or through service (invoice).

Payroll: Running payroll doesnt depend on employment authorization for the candidates that are outside US. Thousands are employed by US companies worldwide. https://www.linkedin.com/pulse/us-companies-can-legally-hire-foreigners-living-other-rich-mba/
Lot many executives live outside and work outside while their pay in USD.
I used to be on US payroll couple of times for few months while in India before being transferred to local salary. Its not illegal for a company to pay money to foreigner while the foreigner lives outside. Companies are not governed for legal payments.

 

[canprofus]

That specific note is for swan0206's case as he/she may not be in a situation to find the job on time while being inside US and may not be the situation to be inside US till processing completes.

For your query:
There is no "must to do" or "must not" on filing H1. One opts for consular processing if candidate is outside while filing, if not they will request for extending it. Not everyone is being inside US. I was in Australia in 2014 when i got my H1 approved for 2014 for the remaining H1 period. I traveled on earlier visa but with new I797. This kind of situation is not new.

I94: You need valid I94 for staying inside the country legally and for the foreigners inside the country. US labor laws for local recruitment and anyone can get money from US companies in USD either as an employee or through service (invoice).

Payroll: Running payroll doesnt depend on employment authorization for the candidates that are outside US. Thousands are employed by US companies worldwide. https://www.linkedin.com/pulse/us-companies-can-legally-hire-foreigners-living-other-rich-mba/
Lot many executives live outside and work outside while their pay in USD.
I used to be on US payroll couple of times for few months while in India before being transferred to local salary. Its not illegal for a company to pay money to foreigner while the foreigner lives outside. Companies are not governed for legal payments.

I have a feeling that you never bothered to read what I wrote and just assumed that it is all about working outside US.

Are you familiar with i9? It is mandatory requirement for employing someone full time in US. Whenever we join a company, i9 verification happens on our first day with our passport and petition. Every time when we get extension, employer extends the i9 date too using our i94.

My question was how can an employer extend payroll as a full time employee (not services or contracting) without extending i9. i94 is a requirement for extending i9. That is the situation @swan0206 is in as far as I understood.

https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents

 

[harirajmohan]

I have a feeling that you never bothered to read what I wrote and just assumed that it is all about working outside US.

Are you familiar with i9? It is mandatory requirement for employing someone full time in US. Whenever we join a company, i9 verification happens on our first day with our passport and petition. Every time when we get extension, employer extends the i9 date too using our i94.

My question was how can an employer extend payroll as a full time employee (not services or contracting) without extending i9. i94 is a requirement for extending i9. That is the situation @swan0206 is in as far as I understood.

https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents

I am not assuming that its all about working outside US. OP is outside of US. So i am writing based on that. OP is a commuter.
I9/Approval/Authorization/I94 - All are needed only for a foreigner inside US.

I already gave examples of people being recruited by US companies and still asking how can one get paid by US companies to the people outside.
Its like how some companies tell new H1 employees that they need ssn to process the payroll. We dont need ssn to get paid as its company's mandate by law to pay (irrelevant of ssn issued or not - if consular hears that individual is not paid then they will initiate enquiry - many cases on it). So same way that we cannot assume that companies cannot pay for the people outside without work authorization/i9 verification. These things applicable for the people inside.

 

[swan0206]

I am not assuming that its all about working outside US. OP is outside of US. So i am writing based on that. OP is a commuter.
I9/Approval/Authorization/I94 - All are needed only for a foreigner inside US.

Yes. Ok so is it same scenario even if there is a 6month or 1year gap as well?

I have a question now. So lets say, my next 30th day is 29th june to use AVR and my new project start date is July(assuming i had a gap of one month on payroll). How do we cover that gap of 1day? will it be illegal if i am not on payroll for that day but i enter US?

 

[harirajmohan]

Yes. Ok so is it same scenario even if there is a 6month or 1year gap as well?

I have a question now. So lets say, my next 30th day is 29th june to use AVR and my new project start date is July(assuming i had a gap of one month on payroll). How do we cover that gap of 1day? will it be illegal if i am not on payroll for that day but i enter US?

Yes, to claim the H1 remaining days. Some lawyers would say that we should be trying to claim on the H1 which was issued newly within 6 years. So 1 or 2 years doesnt matter.

Just go one day earlier saying you have work tomorrow hence going today.

Just take last payslip of last month which should be fine. YOu are to be paid only for the days inside per law hence i doubt they would question. When were you last asked on payslips even when we were traveling once a month? Mostly they dont scrutinize that much for 99% of people unless we are very nervous and suspicious.

 

[swan0206]

Just take last payslip of last month which should be fine. YOu are to be paid only for the days inside per law hence i doubt they would question. When were you last asked on payslips even when we were traveling once a month? Mostly they dont scrutinize that much for 99% of people unless we are very nervous and suspicious.

Thankyou.

Yes, you are right. They never questioned on the payslips but carried them always though. So i had this plan before your discussion came up and just confirming. I wanted to keep doing this just to keep my AVR active till i get a new project(however, this not a problem if i get one soon). I hope this doesn't create an issue regarding payroll if there is a 1-3 days gap in a month. without payroll for that month while im inside during my AVR travel.

 

[destornillador]

A question for all folks on this thread. With the priority dates moving at rapid speed, what happens if someone returns back to the US and the priority on the approved I140 has already been current, and it's been more than 365 days since the priority date was "current"?

Let's assume this example. PD is Jan 2011, and became current in October 2020. Now if the person was in Canada and returns back to the US in November 2021, can they use the Jan 2011 priority date with another or the same employer who sponsored their I140, and get the green card with "current priority date" status?

 

[funloving]

A question for all folks on this thread. With the priority dates moving at rapid speed, what happens if someone returns back to the US and the priority on the approved I140 has already been current, and it's been more than 365 days since the priority date was "current"?

Let's assume this example. PD is Jan 2011, and became current in October 2020. Now if the person was in Canada and returns back to the US in November 2021, can they use the Jan 2011 priority date with another or the same employer who sponsored their I140, and get the green card with "current priority date" status?

Was your I-140 filed for CP or AOS? If its CP then you need to take action within 1-year of receipt of PD being current or if its AOS then you are fine.

 

[destornillador]

Was your I-140 filed for CP or AOS? If its CP then you need to take action within 1-year of receipt of PD being current or if its AOS then you are fine.

It does not explicitly say that either way on the i140. However, assuming most h1b file i140 when inside the US, it would be for AoS.

 

[funloving]

EE: 470 is a good score. You should first apply without employer's help and get the processing of application started before immigration rules change. Not sure why you are waiting for when you have good score(as people dont have good score and scrambling for the same). Getting approval for working from Canada comes later as you should first secure your PR application invitation.
https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/submit-profile/rounds-invitations.html

H1: if at all your office is at the border of Canada the you can try commuting. If not, as you said you can move to Canadian office.

H1 quota exemption after few years: Yes you are quota exempt with same/other employer since you are 140 approved.
GC: If you are in same company, the topic of withdrawing 140 doesnt come into picture. So you should be fine. EVen if they do, it doesnt affect your retaining of the priority date later once you start your new GC process with new company. i see remote chance on taking efforts to withdraw 140 while employed in different country as its additional expense for them.

Commuting frequently on H1B is a very bad idea.

 

[funloving]

It does not explicitly say that either way on the i140. However, assuming most h1b file i140 when inside the US, it would be for AoS.

Not necessary and Don't assume you should check your package (approved I-140). Otherwise, you could lose I-140 and PD.