Moving from L2 to H1

[mbhavesh1]

I am currently residing in US with L2 status which is valid for another 3 years.
I have an EAD card (using L2) with which I am doing a job for employer A.
Potential Employer B applied for H1B visa in April 2015 under premium processing which is approved for 3 years and its COS will happen shortly.

The issue here is that I wish to travel in the month of August 2015?Can I travel?
I shall be rentering US in September on L2 visa. Does my employer B need to file a second petition after October 1 due to my visit?

Employer B tells me that "H1B will be active only when they pay me salary. Till then I shall be on L2". Is that true?
If H1b will be abandoned, what would be the cost of reapplying my petition? What issues will I face if I travel out of US with an approved H1b petition?

-Bhavesh.

[raghvi]

I am currently residing in US with L2 status which is valid for another 3 years.
I have an EAD card (using L2) with which I am doing a job for employer A.
Potential Employer B applied for H1B visa in April 2015 under premium processing which is approved for 3 years and its COS will happen shortly.

The issue here is that I wish to travel in the month of August 2015?Can I travel?
I shall be rentering US in September on L2 visa. Does my employer B need to file a second petition after October 1 due to my visit?

Employer B tells me that "H1B will be active only when they pay me salary. Till then I shall be on L2". Is that true?
If H1b will be abandoned, what would be the cost of reapplying my petition? What issues will I face if I travel out of US with an approved H1b petition?

-Bhavesh.

A COS start date can only be 01-Oct-2015 or later so technically you still looking at another 5 Months of wait to start working with B.

As long as you travel after receiving the Approval petition , and also return before the COS start date, then I think you would be fine.

As for the Employer's claim that H1 will be active only when they pay you, that assumption is wrong. H1 would get active on COS start date and you must work and get paid by the employer from that date otherwise you go out of status.

The COS will get abandoned only if you travel before H1 COS approval. You have to understand that H1 petition approval is different from H11+ COS approval. A COS approval means H1 petition approval + COS approval.

This is my opinion not legal advice.

[mbhavesh1]

Thanks for the excellent answer.
Here are the h1b premium case details so far:
Case History
04/30/2015
We approved your Form I-129, Petition for a Nonimmigrant Worker.

04/20/2015
We received your Form I-129, Petition for a Nonimmigrant Worker, and emailed you a receipt notice. It is being processed at our Vermont Service Center location.

04/17/2015
We received your request for premium-processing of your Form I-129, Petition for a Nonimmigrant Worker, and mailed you a receipt notice.

Next Steps
We will mail our decision to you. The notice will explain any action you need to take.

My employer tells me now that COS wasn't applied for. Will it mean that I shall continue to remain on L2 after October 1st. Can I travel to India now?

[raghvi]

Yes, but would depend upon till when is your L2 visa stamp in the passport valid to and till when is your spouse's L1 I-94 valid.

This is my opinion not legal advice.

[mbhavesh1]

L1/L2 both are valid till the end of next year so I can continue to be on L2 if I wish till then.
Will my H1 petition be abandoned?
Can I travel to India in August?

[mbhavesh1]

I believe H1 will not be abandoned and it sounds like its safe to travel to India then?

[raghvi]

H1 petition may not be abandoned but COS may get abandoned if you travel before COS approval.

This is my opinion not legal advice.

[mbhavesh1]

COS is not yet applied for though. Still it can get abandoned?
Do you recommend the travel then?
What are the repercussions of an abandoned COS?
Can any employer(xyz) not apply for COS(by revoking abandoned COS) and work with me on H1 after October 1?

[raghvi]

COS is not yet applied for though. Still it can get abandoned?
Do you recommend the travel then?
What are the repercussions of an abandoned COS?
Can any employer(xyz) not apply for COS(by revoking abandoned COS) and work with me on H1 after October 1?

If COS is not yet applied then there is no case of its abandonment. Once you are back the employer B can file an amendment to do a COS.

This is my opinion not legal advice.