Question: Hi, I'm Canadian and presently on TN. The employer is my Recruiting Agency on contract with Company A, on location of a Gov Agency. The position is a Contract to Perm and I'm about to become an employee of Company A. I know I need to add an Employer to the TN (I-129) or go back to the border to apply for the new TN. If Company A decides to go with the I-129 for a H1-B or continue with a TN, am I still entitled to work for the Recruiting Agency until we get the new I-94 by mail? Considering that the actual TN so not expire during that time. And what would be the best way to process, H1-B or TN?
Reply: Not only are you entitled to work for the Recruiting Agency while your I-129 petition is pending, you must continue to work for the Recruiting Agency in order to maintain your TN status. In this scenario, you are not authorized to work for Company A (i.e. as a direct employee) until the I-129 petition is approved (for either a TN or H-1B) or you obtain a new TN at the border.
If you’re looking to start working with Company A as soon as possible, then the TN may be the best route to take. You can obtain immediate work authorization by applying for the TN at the border. If you apply for a TN by filing an I-129 with USCIS, it may take several months before you receive an approval (unless you request expedited processing, which results in a decision within 15 calendar days for an extra $1,000).
Unless Company A qualifies for one for the H-1B cap exemptions, you will not be able to file an I-129 petition for an H-1B until April 2009 for an employment start date of October 1, 2009. Furthermore, if history repeats itself, because of the limited number of H-1Bs available each year, all H-1B petitions may be subject to a lottery process.
Note: If you do file a change of status petition in April 2009 (requesting a change from TN to H-1B status), you cannot depart the U.S. while the I-129 petition is pending. If you do, USCIS may consider the I-129 petition as abandoned.