--Posted 7/9/04--
Q - When I was entering the U.S. on my L-1 an Immigration officer at the airport told me that I needed to have with me the I-140 visa application form submitted by the company (Until now they only asked for the L1 visa in the passport). I was sent to “level 2” Immigration office there I waited for an hour. Then the officer there gave me back my Passport and when I asked what was the problem he reply that there is a record of me applying for a green card (I-140) and they needed to clear that I was allowed to exit the US. He did not tell me anything about the visa or to have any other document. Since I didn’t want to be late for my connecting flight I left it at that and proceed to my next flight. Can you explain why this happened?
A - To be blunt, it would seem that the officer had no idea what she/he was doing, for several reasons. First, it would appear that the officer thought you might need advance parole, but you can only get advance parole if you have an adjustment of status (I-485) application pending. If you have only an I-140 petition pending, there is no way for you to even obtain advance parole. Second, even if you did have an adjustment of status application pending, you would still be permitted to travel using your L-1 visa, since L-1 visa holders are not required to obtain advance parole in order to travel while adjustment of status is pending. This is because L-1 nonimmigrants have dual intent, meaning that they can be in L-1 nonimmigrant status and still apply for permanent residence in the U.S.
Q - I noticed on your web site that it states that all new TN's must be done in person unless the person is already in the U.S. (H4 pending for me) and is changing status to TN. Then the application must be mailed to Nebraska. Is this the case for me with H4 (pending 2 months) to TN (new job)?
Thx, KM
A - It is unclear from your facts whether you are currently in the United States, but it would appear that you are and that you have an extension of H-4 status pending. We assume this because you are asking about a TN and are probably a Canadian citizen. If you are in the US and have an H-4 extension application pending (or you are currently changing to H-4 status from another status), then you have two options. Assuming you are a Canadian citizen and not a citizen of Mexico, you could either go to the border and apply for a TN, get it instantly from CBP and return back to your home in the US. I you are a Mexican, you would need to apply at a US Consulate in Mexico for your TN. You could also mail in an application to change your status from H-4 to TN to CIS in Nebraska. If your current H-4 status (I-94) has expired, CIS will not act on your TN application until the H-4 is extended and you provide proof of the extension. If your current H-4 is still valid, CIS will process your TN. Processing can take anywhere from three weeks to six months depending on current priorities. Note, just because your friend filed a TN case in Nebraska last month and it only took three weeks doesn’t mean that this month the same thing will happen. If you need the approval more quickly, (you cannot start working until you have the approval) then you will need to file under premium processing, which adds an additional $1000 fee. In that case, a response is sent within 15 days. There are many other factors that go into the decision as to where to file. You should consult your attorney and discuss where it is best for you to apply.
Q - I have had H-1B visa for two years. I am changing to a new employer who will file a new H-1B application for me. When my new H-1B is approved will I need to get a new visa stamp in my passport from a consulate outside the US now that visa revalidation has ended?
A - If you have an unexpired H-1B visa currently in your passport, you may continue to use it for travel even though you have switched to a new H-1B employer. I assume if you have already been in H status for two years, you probably only have one year validity left on your H visa. When you travel, upon your return to the US you would present your visa showing the old employer and your original I-797 showing your current new employer. The officer should admit you to the expiration date of the I-797 (unless your passport is expiring before that date) not to the date the visa expires. Make sure the officer notes on the back of the I-94 your new employer’s name, not the old one if she/he makes such a notation. If you wish to travel outside the United States after your current H visa expires, then you will need to obtain a new visa from a U.S. consulate abroad. Note: there are exceptions to the requirement of having a valid visa for short trips to Canada, Mexico and some adjacent islands. However, you are not required to have a currently valid visa in your passport as long as you remain in the U.S. and maintain your H-1B status with USCIS. You only need a visa in order to re-enter the U.S. after travel abroad.
