L-1 to H-1B Visa Transfer

[avppgv]

Hi, I am currently working with company A on L-1 visa. I want to switch to company B, for which I believe I will need H-1B visa. But, this year's H-1B visa cap has been reached. Is there any special quota for L-1 to H-1B transfers?

Is there any other way for me to start working for company B this year, or will I have to wait until April next year, apply for an H-1B visa and then join company B from October 2013 no matter what?

[raghvi]

There is no special quota for L1 to H1. The only possible scenarios in which you can try to join company B are if either you had a previously approved H1 in last 6 years or Company B is a non profit organization. If not, you can only work for them from Oct 2013. This is my opinion, do seek expert guidance too.

[avppgv]

Thanks a lot Raghvi, this is quite consistent with my understanding also. Let's say I was also to consult an expert; will you have a contact that I can reach out to by any chance?

Also, I was suggested by a friend that I start in company B's Mumbai office and work in the US for 1 year on B-1 visa (which I already have). And then, join company B as an employee of the US office starting Oct 2013 (by applying in Apr 2013). Have you seen people do that before? Is it viable?

[shervin143]

Working in B1 is illegal at the first place. B1 is not a work visa.

Thanks a lot Raghvi, this is quite consistent with my understanding also. Let's say I was also to consult an expert; will you have a contact that I can reach out to by any chance?

Also, I was suggested by a friend that I start in company B's Mumbai office and work in the US for 1 year on B-1 visa (which I already have). And then, join company B as an employee of the US office starting Oct 2013 (by applying in Apr 2013). Have you seen people do that before? Is it viable?

[raghvi]

As Shervin pointed out working on B1 is illegal hence not advisable. I see various flaws in the plan that your friend suggested.
1. First of all, to join company B you would have to resign from A and if you plan to work for company B on B1 then you would have to first convert your status from L1 to B1 while in US. You would lose your current I-94 and the new I-94, provided you COS gets approved, may be valid only for a few weeks and at max 6 Months, what after that? You would eventually have to go back to India.
2. Even if you are lucky and this COS gets approved, how will you get paid by B? on B1 they cannot generate payroll for you and neither W2s. The next time you go for stamping they might catch these fault of yours and you will end up in more soup.
3. Assuming you resign from A, go back to India, whats the guarantee that company B will send you back on your B1? Even if they do, at Port of Entry they will question you about purpose, how long you plan to stay etc etc, if you say work, they may cancel your B1 and L1 too and deport you back.....
4. Even if you manage to convince them you may not get an I-94 for 6 Months, after that you would have to go back to India. Even if you get I-94 for Max 6 Months when you go back , they will not allow you immediately for another 6 Months.
5. When you actually go for H1 visa interview in 2013, they will see your travel history and might raise red flags.

In my opinion, all this plan of moving to B1 and working is not worth all the risk, and illegal too. You might end up losing your L1 and might not get H1 too. Best option would be to stay put with your L1 employer currently and plan on switching only next year to any other company. Again, this is my opinion, not legal advice.

[avppgv]

Hi Raghvi, this was very helpful. The way I though it would work is as follows:

i. Company B's Mumbai office will be be my official employer until Oct 2013 (of course, with an understanding that they will sponsor my H-1B the next year).
ii. I will be receiving an Indian salary during this time period.
iii. The Mumbai office will send me for a business visit to the US on my B1/B2 visa that I already have.
iv. In worst case, I will get an I-94 for 3 months at a stretch (and in best case 6 months).
v. Based on my research, I think you can apply for one extension of stay on B1/B2 visa. If that happens, I will manage to stay for one full year here (again, in best case).
vi. If the above doesn't happen, then I was hoping I will go back to India for a short while and then come to the US again for another 3/6 months. But, as you pointed out this may be questioned at the port of entry. I had not taken this into consideration.

Of course, it is not a straightforward approach. In fact, it is quite complicated. But, I have to take a call between going for the gamble or sticking with my current job/employer which I am quite fed up with.

Anyway, there is another question I had. How does the H-1b cap work? I have heard that every company (which frequently hires international candidates) blocks a quota for itself. So, is it possible that even though the USCIS has announced (on Jun 11) that cap being reached, company B can still put in new applications if it has applied for less candidates than what it had blocked initially?

[shervin143]

Not sure from where you heard it. The information you heard is wrong. No company in the world has the privilege to block the H1B CAP. H1B CAP is per applicant and it is associated to the candidate (employee) and not with a company.

Anyway, there is another question I had. How does the H-1b cap work? I have heard that every company (which frequently hires international candidates) blocks a quota for itself. So, is it possible that even though the USCIS has announced (on Jun 11) that cap being reached, company B can still put in new applications if it has applied for less candidates than what it had blocked initially?

[avppgv]

So, is it fair to say that if I have not applied for an H-1B visa yet, there is now way I can start with any company in the US on an H-1B visa this October?

[shervin143]

That is correct, unless you find a non-profit organization that can file an H1B that is exempt from CAP.

So, is it fair to say that if I have not applied for an H-1B visa yet, there is now way I can start with any company in the US on an H-1B visa this October?

[avppgv]

Thanks.

Again, just to be clear, I have no intentions to contradict you, but for my understanding I wanted to clarify something. In India, I have heard companies like TCS who provide IT services to other companies block a certain quote of H-1B per year as they have to send a lot of people from India to the US on 2-3 year projects. How is that done?

[raghvi]

You have heard only partial information. Every petition has to be associated with a name and related qualifications, documents etc. No company can block some numbers without a corresponding employee associated with every petition they file. What companies do is internally they select people from various technologies and file H1 petitions for them, even if they immediately dont have intention/requirement for sending these employees to US. As and when they get a project/requirement for that technology they file appropriate LCA , if required, to transfer that employee to US. So a company which files 1000 H1 petition each year, over 6 years, has eventually 6000 employees part of the "H1 ready employees" pool available offshore to be sent to US when required. Bottomline is that petitions cant be transferred within employees, and if you havent got a petition filed with your name for 2013 quota then you will not get a H1 to have a start date of Oct 2012. You can only be part of the 2014 quota which will start from April 2013 and employment start date of 01Oct 2013 at the earliest.. This is my opinion not legal advice.

[shervin143]

Well, that is why there is L1 blanket/individual. Feel free to consult an immigration attorney on your own to validate the information provided.

Thanks.

Again, just to be clear, I have no intentions to contradict you, but for my understanding I wanted to clarify something. In India, I have heard companies like TCS who provide IT services to other companies block a certain quote of H-1B per year as they have to send a lot of people from India to the US on 2-3 year projects. How is that done?

[avppgv]

OK...is there any immigration attorney you know off the top of your head who I can reach out to?

Again, thanks a lot Raghvi and Shervin for your quick and detailed responses; they were quite helpful.

[shervin143]

You can try Rajiv Khanna or M urthy.

OK...is there any immigration attorney you know off the top of your head who I can reach out to?

Again, thanks a lot Raghvi and Shervin for your quick and detailed responses; they were quite helpful.