H1B to L1A

[abhinavt]

Hi,

I am currently on H1B, in my 4th year of employment. My employer has agreed to get me a green card. But he suggested me to get to L1A so that I can possibly avoid LCA and PERM and get the green card much faster. I understand that the petition for L1A will be scrutinized and might get rejected. In the case of rejection, do I still retain my H1B and be eligible to apply for a green card through that route? Or you would think its a bad idea to try this H1B-to-L1A-to-GC route?

Thanks for your advice.

[nicoeppersma]

I am currently on H1B, in my 4th year of employment. My employer has agreed to get me a green card. But he suggested me to get to L1A so that I can possibly avoid LCA and PERM and get the green card much faster. I understand that the petition for L1A will be scrutinized and might get rejected. In the case of rejection, do I still retain my H1B and be eligible to apply for a green card through that route? Or you would think its a bad idea to try this H1B-to-L1A-to-GC route?

Your employer is partially correct. The L-1A requirements are almost identical to the EB-1c requirements (which is what your employer is trying to achieve). However, the EB-1c classification does NOT require the L-1A classification. Your employer intends to change your status to an L-1A visa holder because he is under the impression that a petition for a non-immigrant worker will be approved easier than an immigrant petition. There are good reasons to do so, and there are reasons not to.

Pro:
- Once the L-1A is approved, it will be difficult for USCIS to deny the EB-1c I-140
- Changing status to L-1A gives the employer more time to file the I-140

Con:
- Filing an L-1A means that your position, organizational role and responsibilities will be adjudicated twice (once for the L-1A and once for the I-140). Again, it is difficult for USCIS to deny the I-140, but nevertheless, it is a possibility.
- Filing costs are higher

If you qualify for an L-1A/EB-1c classification, there is no need to go through the PERM process. While you are an H-1B visa holder, your employer can file the EB-1c I-140 as long as he provides sufficient evidence to establish that you are eligible for that classification. In that case, your employer can file your I-140 and I-485 concurrently and you will have your greencards in under 6 months. However, filing for L-1A will in general make it easier to get the I-140 approved.

[raghvi]

Your employer is partially correct. The L-1A requirements are almost identical to the EB-1c requirements (which is what your employer is trying to achieve). However, the EB-1c classification does NOT require the L-1A classification. Your employer intends to change your status to an L-1A visa holder because he is under the impression that a petition for a non-immigrant worker will be approved easier than an immigrant petition. There are good reasons to do so, and there are reasons not to.

Pro:
- Once the L-1A is approved, it will be difficult for USCIS to deny the EB-1c I-140
- Changing status to L-1A gives the employer more time to file the I-140

Con:
- Filing an L-1A means that your position, organizational role and responsibilities will be adjudicated twice (once for the L-1A and once for the I-140). Again, it is difficult for USCIS to deny the I-140, but nevertheless, it is a possibility.
- Filing costs are higher

If you qualify for an L-1A/EB-1c classification, there is no need to go through the PERM process. While you are an H-1B visa holder, your employer can file the EB-1c I-140 as long as he provides sufficient evidence to establish that you are eligible for that classification. In that case, your employer can file your I-140 and I-485 concurrently and you will have your greencards in under 6 months. However, filing for L-1A will in general make it easier to get the I-140 approved.

Are your in US for last 4 Years on H1? If yes, I am not sure you would be eligible for L1 classification. As one of the general conditions is ;
......To qualify, the named employee must also:
Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States.....

This is my opinion not legal advice.

[abhinavt]

Your employer is partially correct. The L-1A requirements are almost identical to the EB-1c requirements (which is what your employer is trying to achieve). However, the EB-1c classification does NOT require the L-1A classification. Your employer intends to change your status to an L-1A visa holder because he is under the impression that a petition for a non-immigrant worker will be approved easier than an immigrant petition. There are good reasons to do so, and there are reasons not to.

Thanks for explaining. I believe this is exactly why my employer is inclined towards L1A, because it will have better chances to get I-140 approved. Filing my green card directly under EB-1 will have very high chances of getting the petition denied since they are usually scrutinized more.

I have another related question. If I change my status to L1A, am I still eligible to find another employer back on H1B, without getting into the cap issues?

- - - Updated - - -

Are your in US for last 4 Years on H1? If yes, I am not sure you would be eligible for L1 classification. As one of the general conditions is ;
......To qualify, the named employee must also:
Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States.....

Thanks Raghvi. I think this is a good valid point. I will have to check my attorney is this is the case. Thanks for pointing it out.

[nicoeppersma]

Are your in US for last 4 Years on H1? If yes, I am not sure you would be eligible for L1 classification. As one of the general conditions is ;
......To qualify, the named employee must also:
Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States.....

That is a valid point indeed, but let me add to that that is irrelevant how long someone has been residing in the U.S. For example:

Case 1:
Barackamouly Balasubramaniandanlanmanwangpangvang has been working for Snake Oil Pro in Australia from 2005 to 2008. He then moved on an H-1B to the U.S. for the same employer and now he wants to convert to L-1 for Snake Oil Pro. That is no problem, since in the three years before moving to the U.S, he worked for Snake Oil abroad.

Case 2:
Barackamouly has never worked for Snake Oil ouside of the U.S. and has been in the U.S. on an H-1B for three years. He will not qualify as he never worked for the employer abroad.

Case 3:
Barackamouly worked for Snake Oil outside of the U.S. from 2002-2004 and moved to the U.S. for WipOil on an H-1B in Jan 2009. In 2010, he switched employers to Snake Oil. He will not be eligible for an L-1 classification is he did not work for Snake Oil abroad in the three years immediately before moving to the US (i.e. 2006, 2007, 2008).

[abhinavt]

That is a valid point indeed, but let me add to that that is irrelevant how long someone has been residing in the U.S. For example:

Case 1:
Barackamouly Balasubramaniandanlanmanwangpangvang has been working for Snake Oil Pro in Australia from 2005 to 2008. He then moved on an H-1B to the U.S. for the same employer and now he wants to convert to L-1 for Snake Oil Pro. That is no problem, since in the three years before moving to the U.S, he worked for Snake Oil abroad.

Thanks. I will most likely be able to fit in case-1, if staying longer than 3 years in US is not going to affect it.

After I get my L1-A approved, will I be able to shift back to H1B if needed? It will be like taking a transfer on H1B and not worrying about the annual Quota? Or will my H1B will be reset and I have to apply for a fresh H1B next April?

[nicoeppersma]

Thanks. I will most likely be able to fit in case-1, if staying longer than 3 years in US is not going to affect it.

After I get my L1-A approved, will I be able to shift back to H1B if needed? It will be like taking a transfer on H1B and not worrying about the annual Quota? Or will my H1B will be reset and I have to apply for a fresh H1B next April?

Yes, you can still go back to H-1B and you will be cap-exempt.

[Abhishek Wadhawan]

AbhishekW_L2-EAD to L1-A CONVERSION

AbhishekW_L2-EAD to L1-A CONVERSION

Hi,
Please support !!

I am currently in India ( working for an MNC ) and got a transfer to US in same organisation on L2-EAD. My L2 visa, I-94 and EAD are valid till 1-Jun 2017. My spouse ( wife ) is already in US on L1B.

My new project is planning to transfer me to L1A.

It is 11 months for me in current project. I have been working for the same employer from Nov'2014 to till date in India and from Oct'2015 onwards in US

My queries:

(1) What is the process for C.O.S. ( change of status )...Will it impact my transfer in any case...

(2) If L1 is the way to go: should I go for an L1A or L1B? I am in the middle management of a huge conglomerate and don’t report directly to the board or management committee?

(3) If I request for a change of status from L2 to L1 in Dec'2015 and I go out of status after filing but before approval, can I still lawfully stay and work in US till there is decision on my application?

Please help

Cheers !!
Abhishek W