Kevin Keane

Full question: I am currently working in the US under a TN (NAFTA) visa. One of the requirements for this visa is that the person will return to his home country after 1 year. Can I apply for an H-1B while under a TN visa? I heard that if during the H-1B process I go back home and try to come back to the US, there's a probability that I may be denied entry, because of applying for an H-1B while on a TN. Is this true?

Thanks to Rod for this question!

First of all, a TN does not require you to return after one year. Rather, it expires after one year - but you can have it extended.

You can change to H-1B while you have a TN. This is often a good option if your long-term plans include a Green Card, since there can be difficulties applying for a Green Card while holding a TN.

It is indeed a theoretical possibility that you will be denied admission after filing a change of status to H-1B, but realistically it is unusual.

DO be aware that if you leave the USA while the H-1B is pending, your change of status will be considered abandoned. The H-1B petition itself will still be perfectly valid, but you will not automatically change from TN status to H-1B. Instead, you have to leave the USA again, and return showing the H-1B petition at the border. As a Canadian, there is usually no need to stop and get a visa at a US consulate.

Once the H-1B petition is approved, you can freely leave the USA and return, and you will change status on the effective date even if you departed in the meantime.

 

The US takes the position that you cannot be a permanent resident in two countries. Accepting Canadian Permanent Residency is strong evidence that you are abandoning your Green Card and may cause you to lose your Green Card immediately.

Not from the US side. If you want to keep your H-1B job, you should research whether not moving to Canada immediately may cause you to lose Canadian Permanent Residency.

Not from the US side. You should research whether such a long term move out of Canada may cause you to lose Canadian Permanent Residency, though.

Unfortunately, no. You will be treated as a citizen of your home country until you become a naturalized Canadian. This includes having to get a visa, as well as any other respect of immigration law.

Note that there used to be a rule about certain landed immigrants being allowed to come to the US without a visa. This rule has been repealed.

Yes, to some extent. Canadians benefit from the following special rules.

• Canadian citizens do not need to get a visa for most activities in the US. Their paperwork can be processed at the port of entry. However, Canadian citizens still need to comply with the same immigration laws as everybody else. This means, among other things:
  • Do not work without the appropriate status.
  • Leave the US within the permitted time.
  Pitfall Warning: If you were waved through at the border, you are considered a tourist admitted for six months. If that is not what you meant to get, be sure to get out of the car and stop at the office! Also, be sure to keep evidence of when you leave the US, in case there ever is a question.
• Canadian citizens (and Mexicans) can benefit from special NAFTA-only rules. Specifically, Canadian citizens can get TN status.
• Canadians currently do not need a passport to enter the USA by land or sea. This is set to change June 1, 2009, though.

Please note that Canadian citizens DO need a passport if arriving in the USA by air.

Unlike most other countries, the Canadian passports do not need to be machine readable.

 

Sometimes. Most Canadian non-immigrants do not need one. Exception are E treaty traders, the K visas for fiances and spouses of US citizens, and certain government officials and diplomats. Canadian immigrants do need an immigrant visa. Details are available from the US Consulates in Canada.

Sometimes. Most Canadians traveling to the USA simply drive to the border and are waved through. This indicates that they are admitted as tourists for up to six months. If your intent is anything else, you must stop at the office and fill out an I-94 that corresponds to your desired status. Of course, you'll also need the appropriate documentation. There is a small fee for the I-94; if you fly or take a ship, the fee is built into your fare.