L-1B to H-1B

[anilmokarala]

Hi, Iam working for Company A from past 5 years and i served in US for two years on L1B from the same company. Last year, i came back to India and my company had processed both my L-1B (as previous L-1b got expired) and H-1B (Consular), given the chance of rejection. Fortunately, i got L-1B and recently my H-1B was picked in the lottery.

My questions are
1. Can i travel to US on L-1B and change to H-1B.
2. Can i travel to US for 3 to 4 months and once i get the H-1b approved, can i come back to get it stamped in India? Will i face some problem if i come back within a short time when i go for H-1B stamping?
3. Do i need to wait until my H-1b gets approved and then travel to US on H-1B?

Kindly advise

[raghvi]

Hi, Iam working for Company A from past 5 years and i served in US for two years on L1B from the same company. Last year, i came back to India and my company had processed both my L-1B (as previous L-1b got expired) and H-1B (Consular), given the chance of rejection. Fortunately, i got L-1B and recently my H-1B was picked in the lottery.

My questions are
1. Can i travel to US on L-1B and change to H-1B.
2. Can i travel to US for 3 to 4 months and once i get the H-1b approved, can i come back to get it stamped in India? Will i face some problem if i come back within a short time when i go for H-1B stamping?
3. Do i need to wait until my H-1b gets approved and then travel to US on H-1B?

Kindly advise

Posts without associated dates are very difficult to answer to. When was your L1 filed? From when to when were you on L1? Was L1 extension filed? What happened to L1 extension? When did the L1 expire? When was H1 filed?

[anilmokarala]

Posts without associated dates are very difficult to answer to. When was your L1 filed? From when to when were you on L1? Was L1 extension filed? What happened to L1 extension? When did the L1 expire? When was H1 filed?

Thanks for you reply raghvi.
Here are the details
My First L-1B (blanket) visa was filed in March 2011 and i stayed in US from May'2011 to Apr' 2013. L-1B visa was expired on Sep 2012. I stayed on I-94 till April 2013.
Our company did not file my extension, as there were multiple rejections for extensions at that time.
After i came back in Apr 2013, I again went for L-1B blanket in Dec 2013 and got visa till Dec 2016.
My H-1B (Consular) was filed on April 1st, 2014 and i received the WAC number on May 1st, 2014

As due to some urgent assignment, i need to travel by this month end.

Please advise.
1. Can i travel to US on L-1B now and change to H-1B (consular) once i get the approval in October?
2. Can i travel to US now for 3 to 4 months and once i get the H-1b approved, Should i come back to get it stamped in India? Will i face some problem, if i come back within a short span of 3 to 4 months when i go for H-1B stamping here in India?
3. Do i need to wait until my H-1b gets approved and then travel to US directly on H-1B?

[raghvi]

Thanks for you reply raghvi.
Here are the details
My First L-1B (blanket) visa was filed in March 2011 and i stayed in US from May'2011 to Apr' 2013. L-1B visa was expired on Sep 2012. I stayed on I-94 till April 2013.
Our company did not file my extension, as there were multiple rejections for extensions at that time.
After i came back in Apr 2013, I again went for L-1B blanket in Dec 2013 and got visa till Dec 2016.
My H-1B (Consular) was filed on April 1st, 2014 and i received the WAC number on May 1st, 2014

As due to some urgent assignment, i need to travel by this month end.

Please advise.
1. Can i travel to US on L-1B now and change to H-1B (consular) once i get the approval in October?
2. Can i travel to US now for 3 to 4 months and once i get the H-1b approved, Should i come back to get it stamped in India? Will i face some problem, if i come back within a short span of 3 to 4 months when i go for H-1B stamping here in India?
3. Do i need to wait until my H-1b gets approved and then travel to US directly on H-1B?

1. Yes you can. H1 would have already been filed as Consular as you were out of US on 01-Apr-2014. While in US you can amend it as COS (Change of Status) from L1 to H1. But the H1 will start only from 01-Oct-2014.
2. Yes you can. If you want to move to H1 you can file amendment to convert from consular to COS. I dont see any issue in coming back within 3-4 Months and going for H1 stamping either.
3. You can travel currently as you already have a valid L1. If you wait for H1 stamping and want to travel on H1 then you have to face another H1 interview, in which your L1 will most likely get cancelled, and if H1 approved you can travel only by Sep End to start working from 01-Oct-2014.

Well eventually it depends upon whether you want to work on L1 or H1.
There are pros and cons of both L1 and H1. on L1 your spouse becomes eligible for L2 and can work, if you on H1 your spouse can get H4 and one cannot work on H4. On H1 one is free to join a different employer while in US, on L1 one can only work with L1 sponsor. Also, there may be compensation, benefits, policy differences within company whether you are on L1 or H1. So look at all the facets before deciding.

I would say you get the H1 I797 petition and keep the H1 option open but dont move to H1 either as COS from within US, or by going for H1 stamping and returning on H1, rather, as you already have a valid L1 stamped, travel on L1 and work on it. No point risking coming back, going for H1 stamping, and risking cancellation of L1 as well as H1.

Later on , as and when you feel the necessity to move to H1 with same employer or a different employer you would be cap exempt and would not have to go through the lottery again.

Also one more thing to take note of is that Max stay on L1 can be for 5 Years, L1+H1 max stay can be for 6 Years. If you want to stay beyond 5th Year one eventually has to have GC filed and move to H1 (unless EB1 cases), at that time having a H1 petition approved in last 6 Years can come in handy rather than waiting for cap.

This is my opinion not legal advice.