H1B to TN1 and back to H1B

[SDEngineer 0]

Hi,

I was on H1B issued in Sep 2012 with my previous employer who went out of business. I left the country, surrendered my I-94 on exit, spent a couple of months in Canada on vacation (I'm a Canadian citizen), and have now found a company that would like to employ me as a contractor for 6 months. The recruiter company which has to sort out the work permit, however, does not want to do H1B transfer and instead wants me to get TN1 and start right away. I suspect their motive is purely financial, which is fine, however this is a major issue for me and I need your help and advice on the following:

If I go for TN1 now, and want to get another H1B after this 6 months contract expires, would that H1B count as :

1) A brand new H1B and count against the cap, or

2) an H1B transfer and would not count against the cap?

The obvious issue is that last time they received 180K applications for 65K visas, and had to draw lottery. I may decide at some point to go from H1B to I-140 and if I do, I can't be relying on lottery to manage that.

I couldn't find any definitive answer on how much of a gap one can have between H1B jobs (finish one, go out of country, apply for another H1B job as transfer a year or two later).

Thanks

[canadian_wife 1,822]

First, what is your job? Is it covered by the TN?

good luck

[SDEngineer 0]

Hi,

This would be System Administrator, computer related job very similar to the last two I held, in both TN1 and H1B classification. The job itself qualifies and all other parameters (education etc.) are satisfied.

Thanks

[umeranyth 0]

Hey SDEngineer,

Check this website out: http://www.h1bvisa.info/h1b_visa_transfer

Should answer all your questions

Best of luck!

[SDEngineer 0]

Hey SDEngineer,

Check this website out: http://www.h1bvisa.info/h1b_visa_transfer

Should answer all your questions

Best of luck!

Hi,

That site hasn't answered this particular question, but I was able to to find an answer by combining several sources and related cases : When applying for H1B (new application), there is a checkbox for "cap exempt" applications. Then, to be cap exempt one has to be in a possession of an H1B that was counted against the cap in the last 6 years, and it should be good to go (provided all other factors and requirements are satisfied).

If this is not correct please reply and state your source.

Thanks

[jan22 3,056]

Neither TN nor H1Bs are for contractors -- they are for employees....there is a real difference in US employment and tax law, so make sure what they are proposing (either way -- TN or H1) is you as an employee.

[SDEngineer 0]

Neither TN nor H1Bs are for contractors -- they are for employees....there is a real difference in US employment and tax law, so make sure what they are proposing (either way -- TN or H1) is you as an employee.

I would be an employee of the staffing agency, placed at client's site for the duration of their contract. I've done this in the past and apparently this is normal and usual procedure, very common in IT industry.

Thanks

[jan22 3,056]

I would certainly want to go the H1 route as the employee of a staffing agency. There is a clear path for what is being proposed for that (i.e., that you are an employee of the staffing agency doing work at an end client location) with an H1 visa -- as you indicate, it's a common IT industry practice. Not sure the same path is as clear with a TN visa, since that requires an offer of employment that spells out the specifics of the job, to ensure that it qualifies for TN status, etc. Your employer (the staffing agency) cannot provide that description directly and will have to supply it from the end client -- which makes it clear that you will not, really, be employed by the employer directly. But -- it might work.....I've just never heard of getting a TN under those circumstances.

And, BTW -- didn't address this before, but you will be able to be petitioned for as "cap exempt", so other be subjected to a lottery drawing to get H1 status is not an issue for you.

Good luck!

[AbbyLeoan 0]

Hi Guys,

I would highly appreciate if someone response to my query.

 

 

I was on H1B issued in Sep 2009 with my previous employer, I got my H1B transfer twice and I left the last job on H1b August 2014. I left the country
and went back to Canada, I left the country, surrendered my I-94 on exit. After 2 months on November 2014, I came back on TN1-VISA with an other job. Since than I have been working in the USA on my TN1-VISA. My employer wanted to apply H1b for me again this year.

 

I need your help and expert advice on the following:

 

Would I be able to get the H1b Visa again? Since I almost worked on H1b visa more than 5 years.

 

I am copying and pasting the exact content from SDEngineer  because I am exactly speculating the same as below.

 

The obvious issue is that last time they received 180K applications for 65K visas, and had to draw lottery. I may decide at some point to go from H1B to I-140 and if I do, I can't be relying on lottery to manage that.

I was not able to find an answer on how much of a gap one can have between H1B jobs (finish one, go out of country, apply for another H1B job ).

 

[WeGuyGal 1,052]

Please do not hijack another's zombie post. You may start your own thread. 

[AbbyLeoan 0]

I am sorry but thought of doing it here because I am in a same situation

Ok, I will start a new thread! Sorry!