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TN vs H-1B for Canadian citizens looking to work in the US

justanotherguy28

Star Member
Sep 28, 2021
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Thank you. I have some familiarity with H-1B having worked in the US a long time back. Your comparison to TN is really helpful.
If you've worked in H-1B before, there can be some potential benefits if you're considering a green card application in future.

Since employers like to have the status converted to a H1-B before filing for green card, they go through the arduous lottery process - if you've never had a H1-B before, that's the only option.

But if you've had a H1 status before, and have a decent amount of time left from the total validity of 6 years, your green card filing process will become much smoother.

Say your total stay in H1-B (lifetime count: all initial + extensions combined) was 3 1/2 years out of the statutory limit of 6 years, you have 2 1/2 years that you can recapture at any point in future without any need for lottery selection.

A future employer that wants to file for your green card can quickly change your status - without having to go through lottery.

If you have only a little bit of time left (like 6 months), it'll become difficult but anything over a year should be ok.

Almost no employer will prefer H1 over TN unless they're about to start the green card process. So this is something that will come in handy at that time.
 
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prash42

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Jun 1, 2014
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Thanks again for your reply. I've used about 3 out of the life time total 6 years for H-1B. I understand your point about employers preferring TN unless a future green card application makes H-1B preferable. For me getting a job will be a slow process, but if a prospective employer does indeed like me, I don't see the cost / effort involved in the H-1B application being a deterrent.

To clarify about the lottery - do I get to avoid going through the lottery for the 65k annual quota, since I was on H-1B before? I also have a masters from an Ivy, so can access the additional 20k quota - does that change things in any way?

Alternatively, looking at this from a completely different angle... at the time when I was on an H-1B, we also had an approved I-140 and were in the final stages (adjustment of status) when we withdrew our green card applications, and moved to Asia. We could have done things differently, this was 14-15 years back, it's a long story, lol. The question now is whether there is an opportunity to self-file / revive the green card application using the original I-140 approval?

If you've worked in H-1B before, there can be some potential benefits if you're considering a green card application in future.

Since employers like to have the status converted to a H1-B before filing for green card, they go through the arduous lottery process - if you've never had a H1-B before, that's the only option.

But if you've had a H1 status before, and have a decent amount of time left from the total validity of 6 years, your green card filing process will become much smoother.

Say your total stay in H1-B (lifetime count: all initial + extensions combined) was 3 1/2 years out of the statutory limit of 6 years, you have 2 1/2 years that you can recapture at any point in future without any need for lottery selection.

A future employer that wants to file for your green card can quickly change your status - without having to go through lottery.

If you have only a little bit of time left (like 6 months), it'll become difficult but anything over a year should be ok.

Almost no employer will prefer H1 over TN unless they're about to start the green card process. So this is something that will come in handy at that time.
 
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prash42

Hero Member
Jun 1, 2014
291
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If a green card application in the future is on your mind, could an L-1 be a better approach than TN? L-1 permits dual intent, while TN is a non-immigrant visa class. On the surface, L-1 may be a straight forward solution if you'd be moving with your employer to a US office.

This thread has been very useful. I am not adding to this, but thanks to everyone for the illuminating posts as I am also eyeing a position in my company's US headquarters and seems TN is the way to go
 

justanotherguy28

Star Member
Sep 28, 2021
99
54
If a green card application in the future is on your mind, could an L-1 be a better approach than TN? L-1 permits dual intent, while TN is a non-immigrant visa class. On the surface, L-1 may be a straight forward solution if you'd be moving with your employer to a US office.
It depends on the type of company. They've started to go after software services companies widely using L1. I believe Cognizant Technology is being sued by a whistleblower under False Claims Act, in part, relating to its L1 use.

I mean, if they end up determining they misused L1 visa and the government asks for further discovery (this is only if the want to really crack down), it will eviscerate not only the company's business model but also a lot of people who got green card via L1 as multinational executives and specialists. Not sure what the statue of limitations is for fraudulently acquiring PR. For citizenship it's 10 years if it's the same (or worse) for PR, it'll be a gut punch.

So you should pay attention to who the employer is.

On the other hand, if you're transferring for a Google or Facebook role based in the US, L1 should be just fine.
 
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lifein360

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It depends on the type of company. They've started to go after software services companies widely using L1. I believe Cognizant Technology is being sued by a whistleblower under False Claims Act, in part, relating to its L1 use.

I mean, if they end up determining they misused L1 visa and the government asks for further discovery (this is only if the want to really crack down), it will eviscerate not only the company's business model but also a lot of people who got green card via L1 as multinational executives and specialists. Not sure what the statue of limitations is for fraudulently acquiring PR. For citizenship it's 10 years if it's the same (or worse) for PR, it'll be a gut punch.

So you should pay attention to who the employer is.

On the other hand, if you're transferring for a Google or Facebook role based in the US, L1 should be just fine.
its for an American big box retailer based out of Atlanta GA. I doubt they are abusing the system but didn’t realize about the scrutiny on L1
 
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justanotherguy28

Star Member
Sep 28, 2021
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its for an American big box retailer based out of Atlanta GA. I doubt they are abusing the system but didn’t realize about the scrutiny on L1

Seems L1 is better than TN then? For a path to green card? What do you mean by dual intent here?
I think I know who you are talking about. I think they should be ok. But make sure you have unfettered access to your employer's attorney and ask them if they anticipate any issues and if they're seeing any trend of additional scrutiny on the L1 applications they're filing for your employer.

L1 seems better since you want to get a green card. Also, If you're married- iirc - they won't be able to work until I-140 is approved + 6 months (or earlier, if I-485 is approved before that time - unlikely). You should talk to the attorney about that if this applies to you. After that they can get an EAD which allows them to do anything they want from a unskilled to a skilled job or even start a business (you cannot be involved in that). TN spouses on the other hand cannot work in the US unless they also qualify for a separate TN.

Dual intent - intention to either be a temporary resident or become a green card holder - just allows you to apply for a green card without any additional status change. Both H1 and L1 allow for dual intent. TN is not a dual intent visa. TN can be denied if they believe you don't have sufficient ties to your home country or they suspect your job is not temporary in nature but H1 or L1 cannot be denied for that reason.
 
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justanotherguy28

Star Member
Sep 28, 2021
99
54
Thanks again for your reply. I've used about 3 out of the life time total 6 years for H-1B. I understand your point about employers preferring TN unless a future green card application makes H-1B preferable. For me getting a job will be a slow process, but if a prospective employer does indeed like me, I don't see the cost / effort involved in the H-1B application being a deterrent.

To clarify about the lottery - do I get to avoid going through the lottery for the 65k annual quota, since I was on H-1B before? I also have a masters from an Ivy, so can access the additional 20k quota - does that change things in any way?

Alternatively, looking at this from a completely different angle... at the time when I was on an H-1B, we also had an approved I-140 and were in the final stages (adjustment of status) when we withdrew our green card applications, and moved to Asia. We could have done things differently, this was 14-15 years back, it's a long story, lol. The question now is whether there is an opportunity to self-file / revive the green card application using the original I-140 approval?

Sorry I saw your post below but missed this one.

Your case is intricate because of the I-140/I-485 situation. It will be prudent to consult an immigration attorney. There are attorneys available for really cheap who my friends have experience with. I don't have any personal or commercial relationship or experience at all with them but I can DM their name, so if you decide to talk to them and pay a consulting fee for their time, please do you own research on them beforehand and decide for yourself if you like to consult with them or not.

Just on H1 (without considering I-140/485):
You can recapture the remainder of your prior H1 time . You very likely do NOT need to go through any lottery. An employer should be able to file a new H1 application (i-129) at any time of the year they want and once it's approved, you can take the approval notice to the border.
Until sometime back, you were allowed to recapture only if your last H1 status was within past 6 years but they changed it to allow recapture from any past H1 from any time period.

When it comes to I-140/485, some of the questions are:
1. Did the I-140 remain approved (and not withdrawn by the employer) for 180 days from the date of approval?
2. Was the I-485 withdrawn before or after 180 days from the date of filing the I-485?

I know the following for sure, if I-140 was filed and did NOT become current (NOT your scenario). Whether it continues to apply after your date became current I'm not able to tell reading the rule:
With an approved I-140 that stayed valid for 180 days you never have to worry about lottery again. For this, your I-140 should have been filed by any employer and been approved. It must not have been withdrawn by the employer for 6 months following the approval. After that time, it doesn't matter whether your employer withdrew your I-140 or you employer went out of business or any other circumstance (except fraud or an US CIS error in approval) - you get a freedom from H1-B lottery for any H1 filed by any employer. You can also keep extending your H1-B (6 year limit no longer applies) until you are eligible to file I-485.

Again, I don't know about the applicability of the above I-140 portability rule for those who filed I-485. This rule itself was created to help people who are in long backlogs and unable to file I-485, that's why I'm unsure what happens post-485.

Next comes I-485 portability:
If you filed 485 and withdrew after 180 days it seems like your priority date will be preserved as well as your I-140 and you should be able to file a 485 after finding a similar job to the I-140 (without a need for a new PERM or an I-140) but I have no knowledge in this area at all.

If your 140 was revoked before Approval + 180 days, it seems like you will need a new PERM+I-140 but you will likely be able to keep the priority date.

Obviously, you've spent some time in the US but I'll say this - as far as job search is concerned US is unlike any place in the world. Just have a specific skillset and focus on it. you WILL get a job without fail. It doesn't matter whether your expertise in writing software or making bolts. Unlike any other place in the world, job search in the US is only about one thing: skillset that job requires. Things like nationality, local work experience and a college degree (college degree matters for visa but in general job market it doesn't), all these factors come last. Just have that mindset and be confident about what you know. Folks have 4-5 offers within a week of moving to the US all the time. Unlike Canada or Europe or almost anywhere else, every American worker is competing with the rest of the world. You will be considered equal as long as you can legally work or there's a way to easily get a legal work authorization like TN.

I still think you should start with a TN role. H1 with premium processing is extremely expensive and off putting for employers of all size. Some may be wary you might reject the offer after getting H1 approval costing them a lot of money. You should include that you are a Canadian citizen and eligible for TN both in your resume and any conversation with a recruiter. You can also mention you have an approved I-140. TN is not very expensive so they're not losing a lot of money when they want to convert you to H1. But obviously, decide for yourself based on your situation.
 
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A_S

Star Member
Apr 29, 2014
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@prash42 adding my two cents to justanotherguy28 's detailed explanation.

In a realistic situation, I am assuming you are not in the US and trying to find an employer to petition your visa application .
  1. Assuming you are from a country with huge backlog, employer might file your 3 year H1B based on you I-140 approval(outside the H1B limit), but since your are outside the US , you cannot start work with the filing of the H1B petition, the current timeline is +6 months to get approved with regular processing and extra $2500 for premium processing(15 days). Since you have a Canadian passport you dont need to book an appointment for H1B stamping. You can just move to US with your Canadian Passport and look for an employer, who files H1B and start working the day petition reaches or filed with USCIS.
  2. TN on the other hand doesn't have to be filed with the USCIS for processing and you can just walk/drive to any US border with your application deck and pay $56 to file your TN , which will be valid for 3 years and then you can extend it at any border including Mexico if for instance you live in Southern California.
For both petitions, the company will bear additional attorney expenses .

If you are not from any backlog countries, you will not be eligible for H-1B extension and will have to go through the lottery system in April 2022. We donot exactly know the status of your I-140/I-1485/parole to comment on whether you will be able to capture your priority date. Suggest you could speak to any attorney who might have better knowledge (try website.. AVVO.. where you might find I-140 answers either in the archived blogs or pay nominal to a US attorney).

Note: If your purpose is to get an US Green Card, TN is not a dual intent unlike H1B. However depending on your country of birth you can still file your I-140 on TN(concurrent filing of I-140/I-485/TN) and you will be able to find more detailed answers in H1B related blogs.

I will leave it up to you to determine which is best for you as we all have different purpose and scenarios and one doesn't fit all.

//// apologies as I didnt read the previous comments and most of what I mentioned have been mentioned and redundant/////
 
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jackbauer

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Feb 15, 2017
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I hear EB2 NIW & EB1 are also good avenues for some one looking to immigrate to the States. Eb1 obviously has a higher standard of proof & bit tough to obtain.
 

justanotherguy28

Star Member
Sep 28, 2021
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I hear EB2 NIW & EB1 are also good avenues for some one looking to immigrate to the States. Eb1 obviously has a higher standard of proof & bit tough to obtain.
Yeah that's always an option. You can always try all these free consultations lot of attorneys have to see if you will qualify for NIW or EB 1 but you're asking for a higher level of scrutiny from the US CIS than a regular EB 2 or lower. But if your skillset or qualifications match you can definitely try, at least the consulting part (as long as you have a reliable attorney who is not greedy and misleading you just for the attorney fee).
 

prash42

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Jun 1, 2014
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@justanotherguy28 and @A_S greatly appreciate your responses, excellent information, you've given me a lot to think about. It's clear my situation is not straightforward. I'm going to research this further over the December break, and perhaps engage an attorney. And yes, I am from the mother of all backlog countries, India :) Assume my country of chargeability for USCIS purposes will remain India, based on birth, even though country of citizenship is (will soon be) Canada.
 

kskr

Full Member
Feb 28, 2017
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39
This is quite common.

Get in initially on TN and then company files H1B so you can eventually get green card.

Win-win for everyone. TN are easier to get, no cap like H1B. TN literally requires just the employment letter which you just take to the airport when flying to the US. H1B requires retaining a lawyer and a lengthy legal process.

TN has a very limited list of occupations though. So make sure yours is eligible and you have experience/education in the field, or else you'll be denied.

Source: i used to be in the US on TN.
Hi,

How do you approach companies to let them know that you just need an offer letter alone for TN and dont need a visa sponsorship? Every company I apply they only have an option to choose whether you need sponsorship or not? I am assuming TN falls under sponsorship or Am I wrong?

Also I am an IT employee(IT Business Aanalyst role) with education background in B-tech (electronics and communication) and MBA (International Business) - Will I be eligible for TN as my education is not related to my job but have 10 yrs of IT experience. TIA
 

FZ6

Full Member
Jun 6, 2018
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24
Hi,

How do you approach companies to let them know that you just need an offer letter alone for TN and dont need a visa sponsorship? Every company I apply they only have an option to choose whether you need sponsorship or not? I am assuming TN falls under sponsorship or Am I wrong?

Also I am an IT employee(IT Business Aanalyst role) with education background in B-tech (electronics and communication) and MBA (International Business) - Will I be eligible for TN as my education is not related to my job but have 10 yrs of IT experience. TIA
TN is not considered to be a sponsorship. H1B is.
 
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