Need advise on L1 + H1 Visa validity - unique case

[madhanps]

Below is my case history:

1. I stayed in US in L1B visa for around 2 years and 6 months (that ended in June 2010)
2. I then came in B1 visa for four months Dec 2010 to March 2011
3. Meanwhile, I got my fresh H1B also approved, went back, got it approved and traveled again July 2011. Note: Here, b/w L1B & H1B, there is one year gap, but traveled in B1 for four months.
4. I then continued to stay here and recently my H1B got extended until March 2017. (Assuming, there is one year gap b/w L1 & H1).

However, now my attorney saying that, since, I am not outside US for one complete year b/w L1 & H1, the current extension is not valid and by calculating my six year period, it ends in February 2015. My attorney is advising to leave US by Feb 2015.

My questions:
(1) Can my employer initiate the GC process now within this three months? (I then go back work in same company abroad and wait for labor to get cleared and apply I140 and come back)
(2) Let's say if it is not possible to apply GC process within this three months, is it okay they can apply after I am out of US?
(3) Lets say my employer not able to file my GC. I go out in Feb 2015 (working in same company in abroad) and after one year, say March 2016, can we extend the same H1B petition? (Since I haven't utilized the six year in that H1?)
(4) Are there any other options or suggestions?

Please help me to understand. Thanks much for your time.

Thanks,
Madhan

[raghvi]

Below is my case history:

1. I stayed in US in L1B visa for around 2 years and 6 months (that ended in June 2010)
2. I then came in B1 visa for four months Dec 2010 to March 2011
3. Meanwhile, I got my fresh H1B also approved, went back, got it approved and traveled again July 2011. Note: Here, b/w L1B & H1B, there is one year gap, but traveled in B1 for four months.
4. I then continued to stay here and recently my H1B got extended until March 2017. (Assuming, there is one year gap b/w L1 & H1).

However, now my attorney saying that, since, I am not outside US for one complete year b/w L1 & H1, the current extension is not valid and by calculating my six year period, it ends in February 2015. My attorney is advising to leave US by Feb 2015.

My questions:
(1) Can my employer initiate the GC process now within this three months? (I then go back work in same company abroad and wait for labor to get cleared and apply I140 and come back)
(2) Let's say if it is not possible to apply GC process within this three months, is it okay they can apply after I am out of US?
(3) Lets say my employer not able to file my GC. I go out in Feb 2015 (working in same company in abroad) and after one year, say March 2016, can we extend the same H1B petition? (Since I haven't utilized the six year in that H1?)
(4) Are there any other options or suggestions?

Please help me to understand. Thanks much for your time.

Thanks,
Madhan

I do agree with the interpretation of the attorney.
1. Yes it is possible to start GC.
2. GC can be applied from outside or inside US.
3. No, you would need a new petition. L1+H1 can at max be for 6 Years. If you use the current H1 petition all previous stays will get added as there was no 1 Year gap.
4. Don't see any apart from already discussed. Applying fresh H1 in 2015 would not yield much result. Applying in 2016 would require wait till 2016 Oct. Your thought of convincing employer to file GC is the safest best. You can also ask them about travel and work from Canada/Mexico.

This is my opinion not legal advice.

[madhanps]

I do agree with the interpretation of the attorney.
1. Yes it is possible to start GC.
2. GC can be applied from outside or inside US.
3. No, you would need a new petition. L1+H1 can at max be for 6 Years. If you use the current H1 petition all previous stays will get added as there was no 1 Year gap.
4. Don't see any apart from already discussed. Applying fresh H1 in 2015 would not yield much result. Applying in 2016 would require wait till 2016 Oct. Your thought of convincing employer to file GC is the safest best. You can also ask them about travel and work from Canada/Mexico.

This is my opinion not legal advice.

Thank you Raghvi. Appreciate your immediate response.

I would like to clarify two more points based on your response. Can you please take a look at below and add your comments.

On the 2nd point, "GC can be applied from outside or inside US" => Let's say after Feb 2015, my visa is not valid right? Does it required, I should have valid visa to apply for labor? My attorney was mentioning like it's not good idea to apply for labor after I am outside US (not sure if that is due to visa reason) do you see any logical reason it shouldn't be applied when I am outside US?

On the 4th point, "Applying fresh H1 in 2015 would not yield much result" => What I came to know from attorney is, after I go out, complete one year and only then I am eligible to apply for new petition. So, any reason you mentioning H1 in 2015 doesn't yield much result?

Other question: In case if GC doesn't work out, instead of waiting for H1B quota and the lottery, after I am outside one year (Feb 2016), the same company can also file for L1B in March 2016 and I can then travel right?

Thank you very much for answers.
Madhan

[raghvi]

Thank you Raghvi. Appreciate your immediate response.

I would like to clarify two more points based on your response. Can you please take a look at below and add your comments.

On the 2nd point, "GC can be applied from outside or inside US" => Let's say after Feb 2015, my visa is not valid right? Does it required, I should have valid visa to apply for labor? My attorney was mentioning like it's not good idea to apply for labor after I am outside US (not sure if that is due to visa reason) do you see any logical reason it shouldn't be applied when I am outside US?

On the 4th point, "Applying fresh H1 in 2015 would not yield much result" => What I came to know from attorney is, after I go out, complete one year and only then I am eligible to apply for new petition. So, any reason you mentioning H1 in 2015 doesn't yield much result?

Other question: In case if GC doesn't work out, instead of waiting for H1B quota and the lottery, after I am outside one year (Feb 2016), the same company can also file for L1B in March 2016 and I can then travel right?

Thank you very much for answers.
Madhan

GC is for future employment so can be filed any time from anywhere. Now, I assume yours would be a EB2/EB3 case, so you would get a GC in around 8-12 Years time frame. In order to be eligible to work in US during this long wait, you got to keep renewing your H1 beyond the 6th Year US stay. What I would suggest is, don't exhaust your entire 6 Years period. Keep a few weeks remaining on it. Now, lets assume your employer files GC in Jan 2015, with 1 Month remaining in 6 Years physical stay limit. If your I140 gets approved before Jan 2016, you can request for a 3 Year extension of the current H1 (which still has 1 Month remaining) and if approved, get it stamped and travel as soon as Jan/Feb/ 2016. If by Jan 2016 your labor is still pending, then you can still request for a 1 Year H1 extension, based on PERM pending for 365 days rule and go for H1 stamping.

If you leave US in Jan/Feb 2015, you more or less don't have any basis for applying fresh H1 petition in April 2015 as you would have barely completed few months outside US stay. Once 6 Years (on H1 or on L1+H1) are exhausted In order to reset clock you need to spend 365 days outside US which for you will complete only in Jan/Feb 2016.


Yes they can, and that is probably the only option at that time. But getting a L1B/L1A approved is not easy as it has its own set of requirements and eligibility criteria and rejection rates are much higher than for H1B. The first negative question that comes to my mind is what's the need for the employer to send you to work in US when they were very well able to manage for 1 Year without you being in US (from Jan 2015 till Jan 2016) ?

For the sake of easy reply, please put questions in numbered/alphabetical bullet point rather than as paragraphs.


This is my opinion not legal advice.

[venum]

L1+H1 Visa Validity - Unique Case

Hi Madhan, Raghav

I have the same situation as mentioned below.

I had L1 Visa from Nov 2007 to Oct 2010 and stayed for 11 months in US. Applied for H1 in April 2011 and got approved. Traveled to US in May 2012 on H1. I was in India for 22 months (continuously) from June 2010 to May 2012 , Now my employer telling me , L1 time also will be counted to H1 6 years.

L1 Petition&Visa expired on 20 Oct 2010, H1 Petition Approved from 01 Oct 2011. My employer says, since i applied H1 before one year completion outside US(June 2010 to April 2011 H1), that's the reason L1 time also will be counted. I came to know this recently , i have used my H1 3.5 years already. Please advise.

1. L1 assignment ended and went back to India in June 2010 and L1 Visa expired on Oct 2010.
2. H1 Petition filed in April 2011 approved from 01 Oct 2011, Traveled to US in May 2012.
3. Was in India from June 2010 to May 2012.


Regards
Ven

Below is my case history:

1. I stayed in US in L1B visa for around 2 years and 6 months (that ended in June 2010)
2. I then came in B1 visa for four months Dec 2010 to March 2011
3. Meanwhile, I got my fresh H1B also approved, went back, got it approved and traveled again July 2011. Note: Here, b/w L1B & H1B, there is one year gap, but traveled in B1 for four months.
4. I then continued to stay here and recently my H1B got extended until March 2017. (Assuming, there is one year gap b/w L1 & H1).

However, now my attorney saying that, since, I am not outside US for one complete year b/w L1 & H1, the current extension is not valid and by calculating my six year period, it ends in February 2015. My attorney is advising to leave US by Feb 2015.

My questions:
(1) Can my employer initiate the GC process now within this three months? (I then go back work in same company abroad and wait for labor to get cleared and apply I140 and come back)
(2) Let's say if it is not possible to apply GC process within this three months, is it okay they can apply after I am out of US?
(3) Lets say my employer not able to file my GC. I go out in Feb 2015 (working in same company in abroad) and after one year, say March 2016, can we extend the same H1B petition? (Since I haven't utilized the six year in that H1?)
(4) Are there any other options or suggestions?

Please help me to understand. Thanks much for your time.

Thanks,
Madhan

[raghvi]

Hi Madhan, Raghav

I have the same situation as mentioned below.

I had L1 Visa from Nov 2007 to Oct 2010 and stayed for 11 months in US. Applied for H1 in April 2011 and got approved. Traveled to US in May 2012 on H1. I was in India for 22 months (continuously) from June 2010 to May 2012 , Now my employer telling me , L1 time also will be counted to H1 6 years.

L1 Petition&Visa expired on 20 Oct 2010, H1 Petition Approved from 01 Oct 2011. My employer says, since i applied H1 before one year completion outside US(June 2010 to April 2011 H1), that's the reason L1 time also will be counted. I came to know this recently , i have used my H1 3.5 years already. Please advise.

1. L1 assignment ended and went back to India in June 2010 and L1 Visa expired on Oct 2010.
2. H1 Petition filed in April 2011 approved from 01 Oct 2011, Traveled to US in May 2012.
3. Was in India from June 2010 to May 2012.


Regards
Ven

I tend to agree with the lawyer, merely being out of US for 12 Months does not reset the clock, there are other factors too. In your case, as the H1 was applied before completion of 1 Year outside US stay, the previous L1/H1 stay also would be taken into consideration.

This is my opinion not legal advice.