L1-B to H1 transfer - past expired stamped H1 visa

[askarjun]

Visa details:
Current Visa: L1B (L1B extended once in Dec 2013)
Expiry date: Apr 2016
First Arrival in US on L1 visa: Oct 2011
Travel on B1 visa before L1 travel: 6 travels ranging from 3 days to 1 week between 2010 to 2011
Past visas: H1-B stamped (Sep 2007 to 2010) - Not traveled on this visa

My Situation:
I intend to stay here for on long term. Beyond Sep 2016.
My company has agreed to apply for a GC on EB3. However, I realize that the GC will not be done within the

5 year duration.
My company has agreed to do an L1 to H1 transfer.
My fear is that 2015 is the only year I can apply for L to H transfer.

My question
1. Given that I had an H1B stamped before(expired Sep 2010). Am I eligible for an H1B Cap Exempt?
2. If this is not exempt, does it makes sense to go ask my company for L1A transfer? Am I even eligible for

this?

Kindly give me your advice.

Cheers
A

[raghvi]

Visa details:
Current Visa: L1B (L1B extended once in Dec 2013)
Expiry date: Apr 2016
First Arrival in US on L1 visa: Oct 2011
Travel on B1 visa before L1 travel: 6 travels ranging from 3 days to 1 week between 2010 to 2011
Past visas: H1-B stamped (Sep 2007 to 2010) - Not traveled on this visa

My Situation:
I intend to stay here for on long term. Beyond Sep 2016.
My company has agreed to apply for a GC on EB3. However, I realize that the GC will not be done within the

5 year duration.
My company has agreed to do an L1 to H1 transfer.
My fear is that 2015 is the only year I can apply for L to H transfer.

My question
1. Given that I had an H1B stamped before(expired Sep 2010). Am I eligible for an H1B Cap Exempt?
2. If this is not exempt, does it makes sense to go ask my company for L1A transfer? Am I even eligible for

this?

Kindly give me your advice.

Cheers
A

1. Your H1 petition was applied in 2007 hence its over 6 Years back . I dont think that can be used.
2. Are you performing Management/Executive decisions? Did you get a promotion while in US? Was an amendment filed upon promotion ? If answers are NO it would be difficult justifying a L1A.

This is my opinion not legal advice.

[askarjun]

1. Your H1 petition was applied in 2007 hence its over 6 Years back . I dont think that can be used.
2. Are you performing Management/Executive decisions? Did you get a promotion while in US? Was an amendment filed upon promotion ? If answers are NO it would be difficult justifying a L1A.

This is my opinion not legal advice.

Thanks raghvi
Regarding your response for each point:
1. Do they consider applied date of 2007 or the expiry of 2010?
2. I did get a promotion is the US and I am well over the mgmt criteria. However, i saw a criteria that if I need to apply for an L1A, I need to have done a managerial role for 1 year in the last 3 years. How will L1A work then?

[raghvi]

Thanks raghvi
Regarding your response for each point:
1. Do they consider applied date of 2007 or the expiry of 2010?
2. I did get a promotion is the US and I am well over the mgmt criteria. However, i saw a criteria that if I need to apply for an L1A, I need to have done a managerial role for 1 year in the last 3 years. How will L1A work then?

1. Though there is no official mention of the same, but the law says 6 Years from the year one was cap counted. Technically you were cap counted in 2007 not in 2010.

2. That is applicable if one is applying for L1A while outside US. Also, if you have not performed management duties outside US for 1 Year it would be difficult to apply GC under EB1 category of multi national executives.
There is provision for L1B to L1A conversion for those who come in to US on specialized skill set and get promoted while in US. But did your company file an amendment to the L1 petition after your promotion? If they did not, again it would be difficult, as USCIS would question why the amendment was not filed when you moved from specialized skill set to management responsibilities.

You need to talk to your immigration lawyer about both the options and see the feasibility.

This is my opinion not legal advice.

[askarjun]

Thank you Raghvi. I will speak to my company on this basis. Thanks.

[regula2006]

Hi ,

I had similar situation which I have done COS from L1B to H1B (This H1B I have applied in 2007 and valid until 2011.) As per the law 6 year term completed by 2013 but I have applied COS in April 2014 and got approval for H1B in H1B Cap Exempt.

Please check the below link for more details.

http://h1bsupport.com/blog/how-to-use-cap-exempt-h1b-explained-with-faqs

Note: you can try to apply COS but it is not guarantee that you will get it. This will change from case to case and there is no enforced rule either to accept or deny by USCIS. Please check with immigration lawyer before applying COS.

Thanks