Immigrant Intent Issue with Change from TN to H-1B Visa?
Question: I am a Canadian citizen and currently a TN visa holder working in the USA. My employer has filed an H-1B petition which is currently being processed (my application has been approved and the H-1B should be issued in October).
Since the H-1B is dual-intent and my current TN visa is only for "temporary" employment, could I be denied re-entry to the US under my current TN visa if I travel outside the US before the H-1B is issued? Are there any other potential problems, like my H-1B petition being considered abandoned?
Answer: I don’t see any issues here. The change of status from TN to H-1B does not represent indicia of immigrant intent merely because the H-1B allows dual intent. Problems with immigrant intent generally arise only after you have taken active steps toward securing a green card (e.g. an employer has filed an I-140 immigrant petition on your behalf). Absent these overt actions, you should not face any travel restrictions during the period of your TN.
Traveling outside the U.S. while a change of status petition is processing may lead to the abandonment of the pending petition. See Legacy INS Cook Memo. But once the change of status petition is approved, travel after the approval, but prior to the effective date of the H-1B should not result in abandonment.