L1 to H1 transfer - dependent status

[nish123]

Hello,

I am working with Organization X and my current status is L1A which is valid until May 2015. Through another employer - Organization Y, I have applied for H1B this year. Current status on H1B is "under review", after we responded to RFE. I am expecting final decision in next 2-3 weeks.

Initially, I was keen to move to H1B and hence applied for COS when filed for H1B in April. However, the situation has changed and now I want to continue with my current employer - Organization X.

With that context, here are my questions:
1. After reading / researching through many forums I came to understand that - to continue on L1 after my H1 is approved, I should leave US (go to my home country) and re-enter using L1 visa. Is that understanding right? Are there any other alternatives?

2. Assuming that #1 is the only option, how soon should I act on it? For example, I see that my H1 got approved on Nov 1, 2013 (so that's the effective date?). How immediate (practically) shall I leave US? Theoretically, it could be the next day, but doesn't sound plausible. Any guidelines specified by USCIS?

3. My spouse is working on L2 EAD with Organization Z. Can she stay back in US while I visit my home country to regain L1 status? What will be the impact on her status? Is it mandatory for her as well to re-enter US using L1 visa?

Any other thoughts / suggestions to deal with the situation better?

Thanks in advance and appreciate early responses.

[raghvi]

Hello,

I am working with Organization X and my current status is L1A which is valid until May 2015. Through another employer - Organization Y, I have applied for H1B this year. Current status on H1B is "under review", after we responded to RFE. I am expecting final decision in next 2-3 weeks.

Initially, I was keen to move to H1B and hence applied for COS when filed for H1B in April. However, the situation has changed and now I want to continue with my current employer - Organization X.

With that context, here are my questions:
1. After reading / researching through many forums I came to understand that - to continue on L1 after my H1 is approved, I should leave US (go to my home country) and re-enter using L1 visa. Is that understanding right? Are there any other alternatives?

2. Assuming that #1 is the only option, how soon should I act on it? For example, I see that my H1 got approved on Nov 1, 2013 (so that's the effective date?). How immediate (practically) shall I leave US? Theoretically, it could be the next day, but doesn't sound plausible. Any guidelines specified by USCIS?

3. My spouse is working on L2 EAD with Organization Z. Can she stay back in US while I visit my home country to regain L1 status? What will be the impact on her status? Is it mandatory for her as well to re-enter US using L1 visa?

Any other thoughts / suggestions to deal with the situation better?

Thanks in advance and appreciate early responses.

When is the L1 Visa in your passport expiring? When is your spouse's L2 visa and I-94 expiring?

[nish123]

When is the L1 Visa in your passport expiring? When is your spouse's L2 visa and I-94 expiring?

I recently got visa extension & amendment (L1B to L1A). So current visa on my passport is expired / irrelevant. Same is the case for my spouse - the visa stamped on her passport is L1B valid until Feb 2014.

The new I-94 has expiry date in May 2015.

Thanks!

[raghvi]

1. That would be the safest option. As long as you are out of US on COS effective date you would not automatically move to H1 status.The other option would have been to file an H1B amendment to convert from COS to consular process but the H1 employer has to agree for that.
2. As said, you should be out of US on COS effective date. So in your case if you leave by Oct End and return Nov 1st week you should be fine. But as your L1 visa has expired, you would need to go attend new visa stamping in order to be able to come back on L1.
3. This complicates as technically your spouse doesnt have any status while you are not in US. So going strictly by rules she should leave with you, attend the L2 visa interview and re enter on L2 visa. USCIS sometimes allow short stay of dependents while primary visa holder is not present, but in cases, such as medical reasons, continuous education reasons etc.

This is my opinion not legal advice.

[nish123]

1. That would be the safest option. As long as you are out of US on COS effective date you would not automatically move to H1 status.The other option would have been to file an H1B amendment to convert from COS to consular process but the H1 employer has to agree for that.
2. As said, you should be out of US on COS effective date. So in your case if you leave by Oct End and return Nov 1st week you should be fine. But as your L1 visa has expired, you would need to go attend new visa stamping in order to be able to come back on L1.
3. This complicates as technically your spouse doesnt have any status while you are not in US. So going strictly by rules she should leave with you, attend the L2 visa interview and re enter on L2 visa. USCIS sometimes allow short stay of dependents while primary visa holder is not present, but in cases, such as medical reasons, continuous education reasons etc.

This is my opinion not legal advice.

Raghvi, Thanks much for your quick response. I think that the second option is a better bet - converting COS to CP by filing H1B amendment. I will talk to my employer regarding this. But before I do that I want to understand it.

Can I file for H1B amendment to convert COS to CP any time? My H1B status is - under review after RFE was responded. Is it a safe point to apply for it?

How can I know that the amendment has been accepted for my case?

What are the odds that my case is processed for COS although I filed amendment for conversion?

Thanks a ton in advance!

[raghvi]

Raghvi, Thanks much for your quick response. I think that the second option is a better bet - converting COS to CP by filing H1B amendment. I will talk to my employer regarding this. But before I do that I want to understand it.

Can I file for H1B amendment to convert COS to CP any time? My H1B status is - under review after RFE was responded. Is it a safe point to apply for it?

How can I know that the amendment has been accepted for my case?

What are the odds that my case is processed for COS although I filed amendment for conversion?

Thanks a ton in advance!

If L1 to H1 COS effective date is 01-Nov-2013 then, if approved, beyond 01-Nov-2013 you should work only with H1 employer. If you don't you will be considered out of status.

If you are not leaving and dont want to join the H1 employer you pretty much have to hope that the COS gets rejected.

Talk to an independent lawyer as pretty much looks like you have very limited options and time.

This is my opinion not legal advice.