No Automatic Fix for TN - H-1B Visa Gap
Question: I'm currently working in New York under TN visa status and my employer has agreed to file an H-1B petition on April 1. If approved, there will be a one month gap between the end of my TN and the start of my H-1B as my TN expires on August 30, 2009. Both myself and my employer need to know what I should plan on doing for the month of September to bridge the gap - do I have to apply for another TN? Or, is there a provision that allows me to continue working under my current status until my H-1B status begins on October 1.
Reply: In order to maintain your authorization to remain and work in the U.S. during the gap between the expiration of your current TN and the start of your H-1B, you will need to file for a new TN. Generally, only certain F-1 students under Optional Practical Training (OPT) may have their employment authorization automatically extended to fill in any gap prior to the H-1B October start date.
Be aware that your H-1B petition may not go directly into “effect” on October 1, 2009. When your employer files your H-1B petition in April 2009, you will not be able to establish that you have authorization to remain in the U.S. until October (because your current TN expires in August). USCIS may approve your H-1B petition on the merits, but not a “change of status” from TN to H-1B. This means you may have to depart the U.S. and re-enter presenting your H-1B approval notice in order to “activate” your H-1B status.
To obtain a change of status approval from TN to H-1B, you may request that USCIS match your H-1B petition with a simultaneously filed I-129 petition to extend your TN status (i.e. should you choose to extend your TN status by mail with USCIS). If USCIS approves your TN I-129 extension petition, then it may issue your H-1B petition as a “change of status.” This would eliminate the need to travel to the border to activate the H-1B petition.