L1 - H1 Transfer complication

[Porbander]

Hi,
I am currently on L1B visa with company A. My employer has asked me to move back by 30th April. I have an expired H1 that company B has agreed to revoke and file a cap exempt petition for me. This would be filed with premium processing. As I need to leave company A by 30th April I need to get the H1 approved before that and serve minimum 2 weeks notice period. When I file for my H1, I need to file H4 for my wife who is currently on L2 and employed. Her employer has agreed to file a H1 for her on April 1st with premium processing. But he is suggesting that we should file her H1 while she is on L1 and not on H4. So he wants to file her H1 first and once it gets approved, then only should I initiate my H1 transfer and her H4. Also, we should ask for H4 effectivity till 30-Sep so that she would be on H1 from 1-Oct.
If we go by this approach, then assuming everything goes fine, her petition would be approved by 15th April. If I file my transfer after that under premium processing I would get an approval by 30th April and won’t have time to serve the notice period. The suggestion that I gave was if possible to file my H1 and her H4 transfer right away but with effectivity date of 1st May. Then we can file her H1 on April 1st. She can be on H4 from 1st May – 30th Sep and we would not need a COS from H4 to H1. Please let me know if this is possible. Or if there are any other alternatives for us.

[raghvi]

Hi,
I am currently on L1B visa with company A. My employer has asked me to move back by 30th April. I have an expired H1 that company B has agreed to revoke and file a cap exempt petition for me. This would be filed with premium processing. As I need to leave company A by 30th April I need to get the H1 approved before that and serve minimum 2 weeks notice period. When I file for my H1, I need to file H4 for my wife who is currently on L2 and employed. Her employer has agreed to file a H1 for her on April 1st with premium processing. But he is suggesting that we should file her H1 while she is on L1 and not on H4. So he wants to file her H1 first and once it gets approved, then only should I initiate my H1 transfer and her H4. Also, we should ask for H4 effectivity till 30-Sep so that she would be on H1 from 1-Oct.
If we go by this approach, then assuming everything goes fine, her petition would be approved by 15th April. If I file my transfer after that under premium processing I would get an approval by 30th April and won’t have time to serve the notice period. The suggestion that I gave was if possible to file my H1 and her H4 transfer right away but with effectivity date of 1st May. Then we can file her H1 on April 1st. She can be on H4 from 1st May – 30th Sep and we would not need a COS from H4 to H1. Please let me know if this is possible. Or if there are any other alternatives for us.

Technically it would be a H4 to H1 COS not a L2 to H1 COS. As, if everything goes as per your plan, before acquiring H1 status she would be in H4 status not on L2. Also, during her L2 to H1 COS processing, if there is an RFE asking to prove your L1 and her valid L2 status, you will not be able to do so as you would have already moved to H1.

Also with so little time on your hand, you might have to build a back up plan in case of L1 to H1, L2 to H1, H4 to H1 RFEs.

This is my opinion not legal advice.

[Porbander]

Technically it would be a H4 to H1 COS not a L2 to H1 COS. As, if everything goes as per your plan, before acquiring H1 status she would be in H4 status not on L2. Also, during her L2 to H1 COS processing, if there is an RFE asking to prove your L1 and her valid L2 status, you will not be able to do so as you would have already moved to H1.

Also with so little time on your hand, you might have to build a back up plan in case of L1 to H1, L2 to H1, H4 to H1 RFEs.

This is my opinion not legal advice.

Thanks for your time Raghvi. So the right way should be to get her H1 approved, then file for my H1 and her H4? If her H1 gets approved, when are we suppose to file for H4 to H1 COS and can there be complexities in that?