Can I stay in US before getting H1B approved?

[rainbow_2011]

Hi,
I'm currently on L2 dependent visa on my husband's L1A. I have an EAD and recently I got a job here in US.
My employer is planning to apply H1B for me for me on April 2011. So if that works well , as per my understanding I should get H1B approved on Oct 2011. But my problem here is that , my husband's L1 Visa(and therefore my visa also) will expire in Sept 20 2011 ie. 10 days before me getting my H1B visa. Will I be able to saty here in US for that 10 days or do I need to leave country till I get my H1B? Would appreciate any help.

[kabkaba]

Your duration of allowed stay depends on your latest I-94. I assume your I-94 date is Sep 20. When your employer files H1 petition with change of status, it will be good if they can file in premium so that you will receive the decision before Sep 20. If it is approved with a new I-94 at the bottom, you can stay and start working from Oct 1. If petition is approved without I-94, you must leave, obtain H1 Visa and return in H1 status to work from Oct 1.

[rainbow_2011]

Thanks for the quick reply. So you are saying that H1B approval can come in two ways- with an I-94 and without an I-94. If that is the case , is there any way I can make sure, mine will come with I-94? Or is it merely a luck. And I also have a correction in the dates. My current Visa is valid till Sept 29 and not Sept 20th. ie. I'm having a difference of just 1 day.

[shervin143]

It depends on how the H1B is filed. If the H1B is filed as a COS from L2, then the H1B approval with come with a new I-94. If the H1B is filed as a Consular Process, then it will come without a new I-94 and you will have to go out of the country and return back in H1B visa to start working for the H1B employer. So ask your employer to file the H1B as a change of status to H1B from L2.

Thanks for the quick reply. So you are saying that H1B approval can come in two ways- with an I-94 and without an I-94. If that is the case , is there any way I can make sure, mine will come with I-94? Or is it merely a luck. And I also have a correction in the dates. My current Visa is valid till Sept 29 and not Sept 20th. ie. I'm having a difference of just 1 day.

[kabkaba]

Even if your employer files it with change of status request, since there is a gap in status in your case USCIS may approve it without I-94. So for you it is somewhat luck.

[rainbow_2011]

So if I'm getting it without I-94, what are the procedures to get it stamped. Goback to India, go to a US consulate..Is that right? Will there be medical check up and all.. How long normally it would take?

[kabkaba]

Process of applying for an H1 Visa is the same as your previous L2 Visa application. It may take anywhere from 1 day to more based on whether any administrative processing is involved. In case of consultancy, you can expect more scrutiny and verification that the employer has a project waiting for you.