L1 expiry with valid I94 and before H1 activation

[Sujay Hathwar]

Hi

I am on L1B visa which is expiring on 26-Aug-2013. My I94 expiry is 12-July-2015.
My current employer is ready to apply for a H1 next year. Since H1B will be valid from 1-Oct-2013 what will be my status from 27-Aug-2013 to 30-Sep-2013?
Can I stay in US during that time? My wife is on L2 and she is working currently. I would like to remain in L1 status as long as possible. What are my options -

1. Apply for L1 extension premium processing in Feb end, hoping that I will get a decision by April. If it gets rejected I will apply for H1 else I will take L1.
In case my L1 extension is rejected -
i) Can I stay in US till 26-Aug-2013? Is my Visa still Valid till 26-Aug-2013?
ii) If answer to above question is Yes then can my employer apply H1 as COS, since my L1 extension is rejected but still have valid L1 Visa?

2. Apply for H1 in April 2013 and then apply for L1 extension in August 2013.
Here i am hoping by the time decision comes it will be October and my H1 will be valid. Is this correct? What happens -
i) If my L1 extension is rejected? Does it invalidate my H1
ii) If my L1 extension gets approved then will I again move into L1 status?
iii) Can I apply for L1 extension only for the gap of 5 weeks between L1 expiry and H1 activation?

Thanks,
Sujay

[raghvi]

Hi

I am on L1B visa which is expiring on 26-Aug-2013. My I94 expiry is 12-July-2015.
My current employer is ready to apply for a H1 next year. Since H1B will be valid from 1-Oct-2013 what will be my status from 27-Aug-2013 to 30-Sep-2013?
Can I stay in US during that time? My wife is on L2 and she is working currently. I would like to remain in L1 status as long as possible. What are my options -

1. Apply for L1 extension premium processing in Feb end, hoping that I will get a decision by April. If it gets rejected I will apply for H1 else I will take L1.
In case my L1 extension is rejected -
i) Can I stay in US till 26-Aug-2013? Is my Visa still Valid till 26-Aug-2013?
ii) If answer to above question is Yes then can my employer apply H1 as COS, since my L1 extension is rejected but still have valid L1 Visa?

2. Apply for H1 in April 2013 and then apply for L1 extension in August 2013.
Here i am hoping by the time decision comes it will be October and my H1 will be valid. Is this correct? What happens -
i) If my L1 extension is rejected? Does it invalidate my H1
ii) If my L1 extension gets approved then will I again move into L1 status?
iii) Can I apply for L1 extension only for the gap of 5 weeks between L1 expiry and H1 activation?

Thanks,
Sujay

Since your L1B I-94 is valid till 2015 you cannot apply for extension and neither do you need to apply for extension too. You can file for a COS to H1 in April 2013 and continue working on L1. Once H1 approval comes in it will be effective from the start date mentioned in the H1 petition. As there is no employer change it should be fine, but as soon as your H1 is effective yoru spouse's L2 is inactive hence advisable to file COS to H4 along with your H1. Also, you should not travel outside US while COS to H1-H4 for you and your spouse is pending. Also, anytime you leave US after August 2013, you will have to get a new visa stamp in your passport in order to re enter US.

This is my opinion not legal advice.

[Sujay Hathwar]

Thanks for the reply. I have some followup questions.

When you say my spouse's status will be invalid after H1 is effective you mean from H1 approval date or from 1-Oct-2013(assuming start date of H1 is 1-Oct)?
Her I94 is expiring on 26-Aug-2013 itself. If I file a COS for her from L2 to h4 can she still work till July 2013?
She can fly back to India in Aug and return with new visa stamp in Oct.
Can she have both COS L2 to H4 (from my employer) and a H1 filed(by her employer) for her at the same time?

[raghvi]

Thanks for the reply. I have some followup questions.

When you say my spouse's status will be invalid after H1 is effective you mean from H1 approval date or from 1-Oct-2013(assuming start date of H1 is 1-Oct)?
Her I94 is expiring on 26-Aug-2013 itself. If I file a COS for her from L2 to h4 can she still work till July 2013?
She can fly back to India in Aug and return with new visa stamp in Oct.
Can she have both COS L2 to H4 (from my employer) and a H1 filed(by her employer) for her at the same time?

I mentioned that if you dont convert your spouse status from L2 to H4/H1 she will be out of status. She will no longer be on L2 from the date you cease to be on L1. H1 Start date is mentioned in the H1 petition date itself, if H1 is approved, the date on the petition will be considered as the H1 start date.

If her I-94 is expiring on 26-Aug-2013 she will have to leave US on or before this date unless you apply for L1 and L2 extensions or leave US and re enter on L1 and hope you both get a matching I-94. Considering the time USCIS has been taking for extensions not filed in premium and RFEs associated with L1s, I personally will not try any of these options as it will make matters more stressful/complicated. If she can leave by 26-Aug-2013 it would be good. You can still apply COS for you from L1 to H1 as you have a valid I-94, you should not apply for COS to H1 or H4 for her from US. She can apply H1 in April 2013 as Consular Processing, leave US in August 2013, once H1 is approved she can attend H1 interview visa at US consulate in India, and if approved enter US on H1 1 Week before her H1 start date. If in worst case her H1 gets stuck or refused she can use your approved H1, provided it is approved, to apply for H4 and enter US on H4.

This is my opinion not legal advice.