Transfer from L1 to H1 Visa

[visarelated]

Hi Experts,

Please suggest. I have mentioned our situation and the questions to the best of our understanding and really looking for experts to answer/comment. Thanks a lot in advance.

Here are our situations

1. I am in L1 (valid till 2017) working for a MNC (Company A). My wife is in L2 EAD working for another company. My wife's company is going to sponsor H1 for my wife in 2014. We both have valid I-94 till 2016.

2. I want to get a H1 done from a consultancy company in 2014 with the option to be in L1 status until I get good opportunities and my wife's H1 is approved.

Questions -

1. Should I ask the consultancy company to apply for a L1 to H1 transfer with CP (consulor processing) and NOT COS (change of status)?

2. If the consulancy comapany files L1 to H1 in CP, I can continue to work for my present employer (Company A) beyond October 1, 2014 until I get a good opportunity or if my wife's H1 is not converted. In that case I shall be in L1 status and she will be in L2 status/Her own H1 status continuing our work. Is that a correct understanding ?

3. If both of of ours H1 is approved, can I ask my consultancy company to apply for a COS sometime after October 1, 2014 being in united states or do I need to get H1 stamping done outside US ?

4. If the answer to Question 3 is only outside united states, Can I get the stamping done in India (home country) only or it can be done in any nearby country, like Canada ? Please note that this may be my first H1 visa.

5. Can I go to India/other country for stamping after receiving my H1 approval being in my current job (Company A in L1) and if H1 stampping is not approved/admin processing/RFE, can I reenter US with the L1 that I already have ?

6. I know that the current visa approval process is really strict. What is the potential risk associated with L1 to H1 transfer ?

[raghvi]

I am assuming your wife's company will file a COS for her from L2 to H1.

1. Yes.
2. Yes.
3. Yes its possible.But its at the discretion of USCIS to approve it.
4. Recommended to go for stamping in home country.
5. Possible if L1 is not cancelled when you attend H1 interview.
6. One of the pitfalls I see is that why would the next employer file a CP, and invest all that cost in you when they don't know when you are going to join them? What eventually happens is that they will ask you to sign a bond or ask you to pay the cost of H1. In such cases the h1 stamping becomes slightly more difficult as sometimes the end client is different and one faces difficulty in getting a concrete client letter. You also have to take care of timing, so that your L1 to H1, if eventually done as COS, doesn't happen before your spouse's L2 to H1 approval.


As long as you can find a genuine employer I would say the risk to reward ratio are low.

This is my opinion not legal advice.

[visarelated]

Transfer from L1 to H1 Visa

I am assuming your wife's company will file a COS for her from L2 to H1.

1. Yes.
2. Yes.
3. Yes its possible.But its at the discretion of USCIS to approve it.
4. Recommended to go for stamping in home country.
5. Possible if L1 is not cancelled when you attend H1 interview.
6. One of the pitfalls I see is that why would the next employer file a CP, and invest all that cost in you when they don't know when you are going to join them? What eventually happens is that they will ask you to sign a bond or ask you to pay the cost of H1. In such cases the h1 stamping becomes slightly more difficult as sometimes the end client is different and one faces difficulty in getting a concrete client letter. You also have to take care of timing, so that your L1 to H1, if eventually done as COS, doesn't happen before your spouse's L2 to H1 approval.


As long as you can find a genuine employer I would say the risk to reward ratio are low.

This is my opinion not legal advice.

Hi Raghvi,
Thank you very much for helping and answering my queries. I really appreciate this.

For No== 5. Possible if L1 is not cancelled when you attend H1 interview.
Do you have any idea what is the usual process in H1 stamping for an already non immigrant visa holder ? Do they cancel out the existing visa first or cancel only if H1 is approved. In the case I am dicussing, we are planning to apply with CP (so the L1 status is still valid unless I get a new I-94 with H1).

The other thing I am not sure about is when I shall try to visit the home country for stamping being in the current job is the regular notice period for my company. My company has a 15 days notice policy in US, which in my understanding I can not serve after my H1 stamping is done. Because I cannot work for my current company from US after the H1 stamping.
Is that a correct understanding ? In that case, I may have to be in India to serve the notice period. Question is - Is that possible to stay in India for some duration after stamping is done ?

For No==6. Related to client letter.
Most probably they will be interested to file the case with a bond or amount, I agree.
Since we are planning to apply for H1 in CP, that should give me enough time to get a client letter and end project allocation set up in advance before I go for stamping, is that possible in general ?

[raghvi]

No 5: Generally the interviewer will look at the merits of the H1 petition, and candidate and decide if it can be approved , or denied or needs additional processing. If approved, most probably your L1 gets cancelled and he/she keeps passport for the H1 visa stamp. If denied, the passport is returned(L1 may or may not get cancelled depending upon the officer). If admin processing, then either the passport is kept or returned based upon the additional evidences required. In rare cases, the visa officer while deciding on the H1, first cancels the existing L1, and later on during the H1 interview determines the need for additional admin processing. So it all depends upon the officer and strength of your case.
Yes, you are right, if you get successful H1 stamping, then high chances of L1 marked as CWOP (Cancelled Without Prejudice) thereby you cannot enter US on L1 to server notice to L1 company. It is perfectly fine to server notice period in India for some duration after H1 stamping is done. There is no compulsion to travel immediately. Of course your H1 employer should be fine with all this.

No. 6: It is possible. That's why I said go with a good employer otherwise it may not be easy.

This is my opinion not legal advice.

[visarelated]

No 5: Generally the interviewer will look at the merits of the H1 petition, and candidate and decide if it can be approved , or denied or needs additional processing. If approved, most probably your L1 gets cancelled and he/she keeps passport for the H1 visa stamp. If denied, the passport is returned(L1 may or may not get cancelled depending upon the officer). If admin processing, then either the passport is kept or returned based upon the additional evidences required. In rare cases, the visa officer while deciding on the H1, first cancels the existing L1, and later on during the H1 interview determines the need for additional admin processing. So it all depends upon the officer and strength of your case.
Yes, you are right, if you get successful H1 stamping, then high chances of L1 marked as CWOP (Cancelled Without Prejudice) thereby you cannot enter US on L1 to server notice to L1 company. It is perfectly fine to server notice period in India for some duration after H1 stamping is done. There is no compulsion to travel immediately. Of course your H1 employer should be fine with all this.

No. 6: It is possible. That's why I said go with a good employer otherwise it may not be easy.

This is my opinion not legal advice.

Hi Raghvi,

Thank you once again.

For No==5 - I went through all the details you provided very clearly. Can I assume a generic thumb rule - If H1 is granted in stamping, existing L1 cancelled without prejudice and if H1 is not approved L1 remains and not cancelled ? Just a generic case because if if H1 is not approved, passport will not be taken and they shopuld not just cancel the existing L1 there. Is that a correct in general understanding ?

For No==6 - Do you suggest any good consultancy company if you have any idea. You can send the details in my mail id also
and in that case I shall send you my mail id.

Thanks once again Raghvi.

[raghvi]

Hi Raghvi,

Thank you once again.

For No==5 - I went through all the details you provided very clearly. Can I assume a generic thumb rule - If H1 is granted in stamping, existing L1 cancelled without prejudice and if H1 is not approved L1 remains and not cancelled ? Just a generic case because if if H1 is not approved, passport will not be taken and they shopuld not just cancel the existing L1 there. Is that a correct in general understanding ?

For No==6 - Do you suggest any good consultancy company if you have any idea. You can send the details in my mail id also
and in that case I shall send you my mail id.

Thanks once again Raghvi.

No 5: Generally they ask for the passport and skim through it while interview is going on. Anyhow as a very generic case your assumption is correct. There are always exceptions though.
No 6: Sorry, I am not aware. You will have to do the research yourself. You can start here : http://www.immihelp.com/h1b-sponsori...nies-database/

This is my opinion not legal advice.

[visarelated]

No 5: Generally they ask for the passport and skim through it while interview is going on. Anyhow as a very generic case your assumption is correct. There are always exceptions though.
No 6: Sorry, I am not aware. You will have to do the research yourself. You can start here : http://www.immihelp.com/h1b-sponsori...nies-database/

This is my opinion not legal advice.

Thank you very much Raghvi. Your answers were really helpful. I shall go through the process and find.

Thanks again.