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I will be working in US as a Software developer. Because I am a Canadian citizen, I am entitled to a TN visa. I have already looked at several posts about the comparison between TN and H1B. My question is more specific to my current circumstance.

From Chart Comparison between H1b and TN:

It says that

Immigrant Intent

TN: May not possess immediate intent to immigrate.

H1B: May process for green card through immigrant visa processing. Adjustment of status available in limited situations. May have "dual intent," i.e., may enter U.S. with intent to immediately process for green card.

There is a large possibility that I will be staying and working in the US for the next few years (5 ~ 7). The benefit of H1B is that I will be able to apply for a green card, which definitely is favorable since I am considering staying in the US for a long time.

But the problem is that when I apply for an H1B, I will have "Immigration Intent". The TN visa is available for people who aren't processed for "immigration intent". If I happen to apply for an H1B, and then I don't get it, do I have to apply for a TN visa? Do you think it would cause problems?

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Applying for H1b doesn't mean you have "immigrant intent". H1b is a temporary work status and has nothing to do with immigration. To immigrate you would need to be petitioned by a relative or petitioned by an employer, and then do Adjustment of Status in the US (you can be in almost any status to do this, not just H1b) or Consular Processing abroad. Some people on H1b immigrate, and some people don't (and many who might want to immigrate can't because no one will petition them).

The only thing about H1b (or L1) is that you will not be denied a visa or denied entry for having immigrant intent, whereas for other statuses (including TN), you must convince them that you don't have immigrant intent when getting a visa (doesn't apply to you since Canadians don't get visas) or entering. Immigrant intent means you intend to file for AOS or to stay illegally during this stay or with this visa; if you don't intend to do that, you don't have immigrant intent, no matter what nonimmigrant statuses you have applied for in the past.

TN can be extended indefinitely, and it is possible that if you stay on TN for very many years, they will start to think that you don't really want to return to Canada and it might become harder to convince them you don't have immigrant intent. But I don't think 5-7 years would be a problem.

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  • "H1b is a temporary work status and has nothing to do with immigration": but isn't it explicitly a "dual-intent" visa or whatever they're called? The category is stautorily excluded from the requirement to demonstrate a lack of immigrant intent, IIRC, and is therefore unlike most other nonimmigrant visas. Also, anecdotally, I know a Canadian architect who married a US citizen after a few years on TN, procrastinated applying for a green card for several years more, eventually did so, and is now an LPR. His intent to adjust status was never a problem before he applied.
    – phoog
    Aug 16, 2019 at 17:28

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