B1 visa with an I140 approved


#1

I am on H1B with an I140 petition approved. If I move to Canada and need to visit US, I will need a B1/B2 non-immigrant visa. Since B1/B2 is a non-immigrant visa the ‘intent to immigrate’ that my I140 suggests, makes it very hard to get a B1/B2 visa. Has anyone in this community successfully managed to secure a B1/B2 visa after an I140 approval by showing strong ties to Canada?

I am planning to apply for Product Manager positions in Canada, which may require me to travel to the US for conferences etc. I am concerned about how I will be able to get a B1/B2 visa and be able to visit the US while I work in Canada.


#2

I had the exact same question, although I’ve not filed my EB1/2 application yet. So I asked my lawyer about this and this is her reply:

Overall, if your I-140 priority date is not current, you are not eligible to file an I-485 (if in the U.S.) or begin Immigrant Visa Processing (if outside the U.S.). Therefore, you would likely not be considered to have immigrant intent when you enter the US with a non-immigrant visa that only permits non-immigrant intent, such as a TN visa or a B1/B2 visa. For B1/B2, we suggest you bring evidence of your temporary stay, such as conference itinerary, invitation to interview, hotel confirmation, return flight ticket. Having said that, it is ultimately up to the discretion of the consular/border officers to approve your B1/B2 visa application/entry.

So basically, while technically you can still apply for a B1/B2 visa, it’s risky since the visa office can (I think but I don’t know for sure) see your approved application which is sufficient to demonstrate immigrant intent. I would recommend talking to your lawyer about this.


#3

This may not be of immediate help, however, even worst case scenario where you can’t get a visa to the US in the next few years after you have immigrated to Canada, once you have become a Canadian citizen, your travel privileges to the US will significantly improve. In light of this, I would be less worried from a long-term perspective.


#4

I agree with @Fan.

I would like to add however, that the privileges are true only for short-term visits, as if you were a tourist.

If you would like to live here and get paid here you will have to re-apply for H-1B (I don’t know for sure if you have to go through the lottery again, if you already have an I-140 approved. For all others they have to go through the lottery again if the 6 years on the previous H-1B are used up).

With an approved I-140 chances of a TN visa being approved might be affected since TN visa is strictly non-immigrant.

Consult with your lawyer for these various scenarios.


#5

I am in a similar position as OP-on H1b and I140 (EB2) approved. Except that I don’t intend to quit my current US job yet and forego my H1B visa.

My H1B is valid until 2019. After getting Canadian PR I would still like to work on H1B for my US employer (remotely and onsite as necessary) until I find a decent job in Canada. For the same reason I would also like to extend my H1B beyond 2019 for three more years based on approved I-140 and continue to work for US employer while living in Canada. This would be my backup for a steady source of income until I find a better job in Canada. That way traveling to the US would be easier on a stamped H1B. I believe this is doable right? Any thoughts?


#6

There’s probably a limit on how much time you can spend outside USA “remotely working” for an employee if you’re getting paid here in the US on H1. It’s best to contact a lawyer to clear this up.