L1 to H1

[utkarshraka]

Hi,
I am currently in the USA on L1 visa. My L1 visa expired on 04/30/2013 and my employer has filed for an extension. At the same time we have also filed for a H1-B and it has got selected in this year's lottery. No news on the petition apart from lottery selection .
We have received an RFE for my L1 and its response is due by 9/24/2013.
My attorney says we should not respond to this RFE & has advised me to leave USA before 9/24/2013 , get my H1 stamped from India and then come back.
My question is, if the H1 gets approved, do I still have to go to India & get my h1 stamped before I can start working here?
Can the visa not be stamped whenever I go to India ?

Any one has any insights on this ??

[raghvi]

Hi,
I am currently in the USA on L1 visa. My L1 visa expired on 04/30/2013 and my employer has filed for an extension. At the same time we have also filed for a H1-B and it has got selected in this year's lottery. No news on the petition apart from lottery selection .
We have received an RFE for my L1 and its response is due by 9/24/2013.
My attorney says we should not respond to this RFE & has advised me to leave USA before 9/24/2013 , get my H1 stamped from India and then come back.
My question is, if the H1 gets approved, do I still have to go to India & get my h1 stamped before I can start working here?
Can the visa not be stamped whenever I go to India ?

Any one has any insights on this ??

Assuming your I-94 has already expired along with the visa on 04/30/2013 then this is probably the safest route to move to H1. Technically you can stay till 240 days from your I-94 expiry but the period will be considered out of status if L1 extension is rejected.
Unless your L1 extension is approved you would be out of status. If your L1 extension results in a rejection then you dont have a valid status from 04/30 till the rejection date hence subsequently you cant move to h1 from 01-Oct-2013 remember the COS to H1 will be valid from 01-OCt-2013 only if you were in a valid status on 09/30/2013.

L1 extensions are being scrutinized heavily nowadays and your attorney seems to be anticipating a rejection, this is the reason they may not be interested in pursuing a L1 extension, and your attorney is asking you to go get H1 stamped and return on H1.

The other way around would be to reply immediately to the RFE and upgrade L1 extension request to premium so that you get a decision quickly. But the risk there is if its a denial you might have to leave immediately. If it gets approved you would have do a COS from L1 to h1 again. To avoid all this legal mesh and extra paperwork not withstanding the legal cost, the attorney is asking you to delay the RFE response and travel to get H1 stamping. Also from an employer's perspective too, you would be billable to end client till 09/24/2013, and subsequently you would go, get H1 stamped and return around 1st week of October, so minimum loss of billability too. Many employers dont want this extra legal paperwork and costs hence ask the employee to travel and get stamping done .

If all H1 paperwork is right the chances of getting a successful H1 stamping are far greater than the chances of getting an L1 stamping/extension approved. And time taken is also less. Only issue is it involves a travel out of US.

This is my opinion not legal advice.