H1 Clarification

[devspace]

Hi..
I have few questions regarding the H1 Visa and its nuances

First off, I am currently in L1-B Visa status working for ABC company and my max out ( 5 Yrs completion) of L1-B is by November 2014. My employer is gonna file H1-B for me by April 2014 which will get effective in 2014 October. So my queries are

1) Is L1-B to H1B visa conversion treated as visa type conversion or will it be a regular H1-B new petition which will fall under the guidelines of a usual H1-B petition?

2) Once the H1 conversion is filed in April 2014 , can I leave USA and stay in India while the petition is under process ? Will it impose any problems if i receive any RFE ? In other words, is there a constraint that i Should not travel back to India until i receive a decision on my petition?

3) If i travel back to india once my petition gets approved, and stay in India for an year and then travel , will my last US stay duration gets reset? I mean , the H1 will have 5 years validity again

Kindly clarify and thanks in advance for your response.

[raghvi]

Hi..
I have few questions regarding the H1 Visa and its nuances

First off, I am currently in L1-B Visa status working for ABC company and my max out ( 5 Yrs completion) of L1-B is by November 2014. My employer is gonna file H1-B for me by April 2014 which will get effective in 2014 October. So my queries are

1) Is L1-B to H1B visa conversion treated as visa type conversion or will it be a regular H1-B new petition which will fall under the guidelines of a usual H1-B petition?

2) Once the H1 conversion is filed in April 2014 , can I leave USA and stay in India while the petition is under process ? Will it impose any problems if i receive any RFE ? In other words, is there a constraint that i Should not travel back to India until i receive a decision on my petition?

3) If i travel back to india once my petition gets approved, and stay in India for an year and then travel , will my last US stay duration gets reset? I mean , the H1 will have 5 years validity again

Kindly clarify and thanks in advance for your response.

1. Technically there is no "L1 to H1 Conversion". What you would be applying is a Change of Status to H1. Yes, it will be a new H1B petition and fall under the cap.
2. If one files a COS and leave, it is considered abandoned, in this circumstance the H1 petition may still get approved but approved as consular process instead of COS. A consular process approved H1 petition would require you to attend H1 visa interview at a US consulate and if the H1 is stamped you can use it to travel to US and enter on H1.
3. No, the rule says that the clock is reset only after staying outside the US for an entire year, and then applying in the cap at that time. Since you are applying under the cap of year in which you havent completed outside stay for a year, the previous stays in L1 will get added. If you want a fresh 6 Year H1 by resetting your clock, you would have to leave before April 2014, and apply in April 2015 with a start date of Oct 2015. What you can certainly do is file in April 2014 , with a start date of Oct 2014, and also file your Green Card ASAP. That way by the time your 6 Years completes in Nov 2015, your PERM would be pending for over allowing you to extend the H1 visa.

This is my opinion not legal advice.