I'm a Canadian working in the USA with TN visa. I applied for H1B (cap). I went to Cancun, Mexico for 6 days last week (Last week of April 2019 - First week of May 2019) and when I came back, I was told by my lawyer that I was selected for H1B (ie. "Case is received"). The notice date on my I797-C is my 2nd day of vacation in Mexico.

In short, timeline looks like this:

  1. I went to Mexico
  2. Selected for H1B
  3. I came back from Mexico

I believe I will be put on the H1B Consular Processing because of my vacation to Mexico. Am I right? If so, can I freely travel to my home country (Canada) this summer?

  • Were you readmitted to the US in TN status? – phoog May 9 '19 at 17:43
  • @phoog yes that is correct – Tuna May 9 '19 at 18:13

If you're in the US, you won't be doing consular processing, but change of status. It doesn't matter that you were outside of the US on your notice date.

Instead of change of status (which is expensive), you can leave the US and apply for admission in H-1B status when you return.

In any event, you don't need "consular processing" because that means nothing more than applying for a visa. As a Canadian citizen, you do not require a visa in your passport except for E, K, S, and V classifications.

So yes, you can travel freely to Canada, just be sure to take all the evidence you need to be readmitted to the US in the appropriate status. Talk to your lawyer if you're unsure.

  • "If you're in the US, you won't be doing consular processing, but change of status." But leaving the US while a Change of Status or Extension of Status is pending usually abandons the COS/EOS. His H1b petition will still be approved, but likely without COS approval, and thus will require him getting a visa at a consulate, unless the company files a second I-129 requesting COS again. – user102008 May 9 '19 at 17:55
  • 1
    @Tuna you are in the US in TN status. At some point, you will have to be in H-1B status. You can do that in one of two ways: (1) file I-539 to change without leaving the US, which costs $370, or (2) leave and apply at the border for H-1B status, just as you have been applying at the border for TN status, but with different documents, which is free (maybe there's a nominal fee for the I-94, I don't know). You do have to leave the US to avoid the $370, but you don't have to go to a consulate. – phoog May 9 '19 at 18:19
  • 1
    @Tuna as user102008 notes, if you file for change of status and then leave the country before it is approved, your change of status application will be abandoned, and you'll have to reapply at the border anyway. So there's little point in applying for change of status if you know you'll be leaving the country before it is approved. – phoog May 9 '19 at 18:21
  • 1
    @phoog: Oops I forgot the OP was Canadian, in which case he can just go to the border and re-enter presenting his H1b petition approval to be admitted into H1b status. No visa needed. To do Change of Status in the US to H1b status, he cannot file I-539; it can only be done by the company filing I-129. – user102008 May 9 '19 at 18:27
  • 1
    @Tuna: It depends on whether your eventual approval notice turns out to be an I-797A or I-797B. If I-797A, then it is a petition approval together with a Change of Status approval, and it comes with your new paper I-94 which you can detach. If I-797B, it's a petition approval without a Change of Status approval, and your status remains the same unless you leave the US or your company applies for Change of Status for you again. – user102008 May 9 '19 at 18:50

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.