GC for expired L1B that has valid I94

[wanderer]

Hi
I came to US in jun'2011 on L1B visa that expired in Feb'2014. However i had a valid I94 valid thru Nov'2016 and hence am staying and working on basis of that. My company didnt file a renewal L1B for 2 reasons - a) valid I94 and b) renewal rejections. I am now in a mangerial position, been 6 months now. The company is now ready to file green card for me and hence i wanted to understand the following:
A. Do i qualify for EB1 category as well while on L1B? My company says they will most likely file in EB2 only (i am an MBA with close to 9 years of experience). Are they being over cautious and hence not apllying EB1 or i dont qualify? Is it mandatory to have been in a managerial position outside of US as well?
B. after lets says I140 is approved and since filing of I485 is only allowed when my date is current, does this mean i will have to go back to my home country when my I94 expires? Is there not a provision like for H1s to extend the stay on pending 485s and continue to stay until i get the green card?
C. What other options do i have next year with assuming, an
approved I140? Should i file for H1 or a COS to L1A which would give me another 2 years? And before that, are both these options still open with an approved I140?
D. If god forbid, i have to go back in Nov'16, what will happen to my GC fifling? It will remain valid, correct?
E. I read about Consular processing, what does that mean? If i were to go back, does this mean i can get my GC processed via consulate? But is the processing time still the same? I will have to wait for dates to become current before reaching the consulate?
F. If i were to go back, how soon can a new visa process be started for me? Lets say an L1A. Will this new visa filing affect my underway GC processing by any means?

Kindly provide your response at the earliest pls. Thanks much.

[raghvi]

Hi
I came to US in jun'2011 on L1B visa that expired in Feb'2014. However i had a valid I94 valid thru Nov'2016 and hence am staying and working on basis of that. My company didnt file a renewal L1B for 2 reasons - a) valid I94 and b) renewal rejections. I am now in a mangerial position, been 6 months now. The company is now ready to file green card for me and hence i wanted to understand the following:
A. Do i qualify for EB1 category as well while on L1B? My company says they will most likely file in EB2 only (i am an MBA with close to 9 years of experience). Are they being over cautious and hence not apllying EB1 or i dont qualify? Is it mandatory to have been in a managerial position outside of US as well?
B. after lets says I140 is approved and since filing of I485 is only allowed when my date is current, does this mean i will have to go back to my home country when my I94 expires? Is there not a provision like for H1s to extend the stay on pending 485s and continue to stay until i get the green card?
C. What other options do i have next year with assuming, an
approved I140? Should i file for H1 or a COS to L1A which would give me another 2 years? And before that, are both these options still open with an approved I140?
D. If god forbid, i have to go back in Nov'16, what will happen to my GC fifling? It will remain valid, correct?
E. I read about Consular processing, what does that mean? If i were to go back, does this mean i can get my GC processed via consulate? But is the processing time still the same? I will have to wait for dates to become current before reaching the consulate?
F. If i were to go back, how soon can a new visa process be started for me? Lets say an L1A. Will this new visa filing affect my underway GC processing by any means?

Kindly provide your response at the earliest pls. Thanks much.

What is your country of birth? As that will decide the prioirty date for EB1/EB2.


A. Whether or not you qualify for EB1 would depend upon your eligibility for the same. I do see few hiccups; Why company didnt file a L1B to L1A upon your promotion? It seems you were not working as a manager for at least 1 Year before your entry to US.
B. Well, if your priority date does not become current before your I-94 expiry, and if you dont successfully move to another status, then yes, you would have to go out of US. There is no provision of extending L1B beyond 5th Year/L1A beyond 7th Year while priority date is not current. This is allowed only for those on H1.
C. Depends upon what can be predicted as time taken for your priority date to be current. If it can potentially become current within next year or so then L1A could be tried. I would say best option is to get onto the H1 route ASAP.
D. GC would remain valid as long as employer does not withdraw the I140.
E. It only means you will have to go for Consulate interview outside US, at the respective Country US consulate once your priority dates becomes current.
F. Merely having a pending GC does not inherently give you an advantage. If you apply L1A as soon as you leave upon completion of 5 Years of L1B then, if L1A if approved, would be valid only for 2 Years. As for H1 you need to be part of cap first.

If you dont see a chance of EB1 I would suggest you go for H1 this year April 2015 and try your luck.

This is my opinion not legal advice.

[wanderer]

What is your country of birth? As that will decide the prioirty date for EB1/EB2.


A. Whether or not you qualify for EB1 would depend upon your eligibility for the same. I do see few hiccups; Why company didnt file a L1B to L1A upon your promotion? It seems you were not working as a manager for at least 1 Year before your entry to US.
B. Well, if your priority date does not become current before your I-94 expiry, and if you dont successfully move to another status, then yes, you would have to go out of US. There is no provision of extending L1B beyond 5th Year/L1A beyond 7th Year while priority date is not current. This is allowed only for those on H1.
C. Depends upon what can be predicted as time taken for your priority date to be current. If it can potentially become current within next year or so then L1A could be tried. I would say best option is to get onto the H1 route ASAP.
D. GC would remain valid as long as employer does not withdraw the I140.
E. It only means you will have to go for Consulate interview outside US, at the respective Country US consulate once your priority dates becomes current.
F. Merely having a pending GC does not inherently give you an advantage. If you apply L1A as soon as you leave upon completion of 5 Years of L1B then, if L1A if approved, would be valid only for 2 Years. As for H1 you need to be part of cap first.


If you dont see a chance of EB1 I would suggest you go for H1 this year April 2015 and try your luck.

This is my opinion not legal advice.

Thanks a lot Raghvi for your prompt response. I had some related queries -

A. Country of birth - India. Yes, i wasnt in a managerial position before coming to US. So is it mandatory for the company to file COS when they promoted me? They didnt tell me anything about this and also what are the repercussions of not filing it?
C. I didnt get your response around filing L1A when my priority date becomes current. Why would i need L1A then? Wont i get the GC only then? Or did u mean if the 485 takes time and my I94 is about to expire, to avoid such situation L1A would help? Is that what you meant? Secondly, for EB2, is there even a possibility of priority date becoming current in the next year? You mentioned if it becomes current, so is there a possibility? Lastly, if the priority date doesnt become current, can a COS from L1B to L1A still allowed or will that option be no more valid?
F. Can i apply for L1A immediately upon reaching India or is there a cool off period required before i file?

Considering the 3:1 or even worse ratio for H1, i am afraid what will happen there. Also my employer wont file H1 for me, so would you recommend i reach out to other potential employers willing to file H1 for me? Is it allowed by law?

[raghvi]

Thanks a lot Raghvi for your prompt response. I had some related queries -

A. Country of birth - India. Yes, i wasnt in a managerial position before coming to US. So is it mandatory for the company to file COS when they promoted me? They didnt tell me anything about this and also what are the repercussions of not filing it?
C. I didnt get your response around filing L1A when my priority date becomes current. Why would i need L1A then? Wont i get the GC only then? Or did u mean if the 485 takes time and my I94 is about to expire, to avoid such situation L1A would help? Is that what you meant? Secondly, for EB2, is there even a possibility of priority date becoming current in the next year? You mentioned if it becomes current, so is there a possibility? Lastly, if the priority date doesnt become current, can a COS from L1B to L1A still allowed or will that option be no more valid?
F. Can i apply for L1A immediately upon reaching India or is there a cool off period required before i file?

Considering the 3:1 or even worse ratio for H1, i am afraid what will happen there. Also my employer wont file H1 for me, so would you recommend i reach out to other potential employers willing to file H1 for me? Is it allowed by law?

A, For India EB2 is current is Feb 2005, so, any Indian born, filing under EB2 might as well expect to have a wait time of 9-10 years for GC to come through.
As for filing COS from L1b to L1A, there have been few RFEs raised where USCIS questioned why the COS was not applied as soon as promotion was given when the role and responsibiltity changed. Also, For EB1
it is one of the requirements that the employee should have worked for at least 1 Year abroad in the maangerial/executive position.

C. If filed under EB2 your priority date would not be current in next few years, so I would say you try to move to H1 ASAP.

F. There is no cool off period requirement, but as I said if your company is not filing in EB1 then its advisable to try to move to H1 ASAP. If your current employer not willing for EB1 or H1 then I would say that another employer option would be the best to try to stay beyond current I-94 expiry.

This is my opinion not legal advice.

[wanderer]

A, For India EB2 is current is Feb 2005, so, any Indian born, filing under EB2 might as well expect to have a wait time of 9-10 years for GC to come through.
As for filing COS from L1b to L1A, there have been few RFEs raised where USCIS questioned why the COS was not applied as soon as promotion was given when the role and responsibiltity changed. Also, For EB1
it is one of the requirements that the employee should have worked for at least 1 Year abroad in the maangerial/executive position.

C. If filed under EB2 your priority date would not be current in next few years, so I would say you try to move to H1 ASAP.

F. There is no cool off period requirement, but as I said if your company is not filing in EB1 then its advisable to try to move to H1 ASAP. If your current employer not willing for EB1 or H1 then I would say that another employer option would be the best to try to stay beyond current I-94 expiry.

This is my opinion not legal advice.

Thanks a lot once again Raghvi. Sorry to bother you again but have some related queries again -

A. Lets say am able to get L1A next year and become eligible to stay for another 2 years, what are the options for me to travel outside of US? Will I have to take this approved L1A petition, travel to India and apply for stamping there and then come to US with new stamping, correct? Is there a possibility of rejection in the US consulate in India for a case like mine? Or mine would most definitely get approved?
Similarly, lets say am able to get H1, and keep on renewing it till the time GC is approved, assume its 10 years. So what will be the way to travel to India on that H1? Similar as above? wherein I will have to get fresh stamping done in India before returning to US?
And, is travel to Canada or Mexico allowed for such stampings? or home country only is recommended or is the law?

My company always mentions that if employee has valid I94 and if an extension or COS is filed, USCIS returns it stating a valid I94. So thats why may be they didnt file a COS for L1A. Will this statement be not appropriate should a RFE come?

Lastly and importantly, by working abroad in managerial position, you meant working outside of US, correct? Is this a mandatory condition?

C. moving to H1 will get me a new H1 altogether with a validity of 3 years initially? or will it only extend my stay by 1 year to begin with (max allowed on H1 (6) - max stayed on L1B already (5))? and in that year, with a pending priority date, I will be able to renew it again and then travel, right?

F. with this new employer, I will have to also negotiate filing of a GC right besides the H1? otherwise I will be able to stay for a max one year more only right if I get the H1 processed.

Thanks again.