L2 to H1 query

[rajeshg24]

Hi All,

Brief History -

Had a H1 petition valid from Sep 2006 to Aug 2009. It expired and I never extended it.
I stayed a total of 10 months in 2007 and 2008 with that H1 in USA
I'm now in US on L2 from April 2011 onwards.

Queries -

1. Since am already in US, can I apply for H1 while am in US without going back to India?
2. Since I just used 10 months of the H1, and have spent more than 1 year outside of US, I guess am eligible to apply without H1 cap.
3. Since I didnt extend the original H1, am I still eligible for (6 years - 10 months) or am I only eligible for (3 years - 10 months)?
4. Will my stay in L2 during the last year reduce the amount of years I get in the cap exempt H1?

Are there any other things I should take care for converting from L2 to H1.

Thanks a ton for taking time to read this, if you can share answers to the above I would appreciate it.

[shervin143]

1. Since am already in US, can I apply for H1 while am in US without going back to India?
>>> Possible. A COS from L2 to H1B can be filed. You cannot work until the H1B gets approved with a new I-94.

2. Since I just used 10 months of the H1, and have spent more than 1 year outside of US, I guess am eligible to apply without H1 cap.
>>> You are talking about two different things. You can either file a new H1B petition using the old H1B CAP and get the remaining period in that CAP or file a fresh new H1B petition on a new CAP (since you have spent 1 year outside U.S) with the employment start date of Oct 1st or later and get a new 6 year term.

3. Since I didnt extend the original H1, am I still eligible for (6 years - 10 months) or am I only eligible for (3 years - 10 months)?
>>> You are eligible for 6 years minus whatever time that you have already spent in U.S in H1B + L1 status.

4. Will my stay in L2 during the last year reduce the amount of years I get in the cap exempt H1?
>>> NO. Only the time spend in U.S in H1B + L1 status counts towards the 6 year limit.

Are there any other things I should take care for converting from L2 to H1.
>>> You cannot work for the H1B sponsor until your H1B petition gets approved and the approval should come with a new I-94. There is a premium process that will get you the result within 15 days (for an additional $1250).

[rajeshg24]

Hi Shervin,

Thanks a lot for taking time to respond to my queries. Much appreciated!!

Few more queries based on your response -

1. Assuming my employer applies for H1 now (exempt from cap category for remaining years), would it come with the I94 card? is there something i should do to request the I94 card?

2. Is COS an application that would be submitted along with my H1 application because am currently on L2? would that affect H1 processing and getting a new I94 card in any way?

Thanks again!

[shervin143]

1. Assuming my employer applies for H1 now (exempt from cap category for remaining years), would it come with the I94 card? is there something i should do to request the I94 card?
>>> If the petition if filed as a COS instead of Consular process, then the approval will come with a new I-94 attached to it (Provided you & your spouse are maintaining the L1 & L2 status correctly).

2. Is COS an application that would be submitted along with my H1 application because am currently on L2?
>>> It is not a separate application. It is just an option in form I-129. Since you are already in U.S, the employer can file the petition as a COS (by attaching a copy of your existing valid I-94).

would that affect H1 processing and getting a new I94 card in any way?
>>> No. If the approval doesn't come with a new I-94, then you have to leave the country and return back in H1B visa (which will get yu a new I-94 at the POE associated to H1B) to work for the H1B sponsor.

[rajeshg24]

Thanks a ton Shervin for your time and sharing your expertise. Much appreciated!!