L1B to H1B COS - Need expert advice

[lingaa]

My current situation - My 3 years L1B expires on 25-Jul-2015, both the visa and I94. My company will apply for my H1B (COS) on Apr 01. My company has also planned to apply for my L1B extension by Jul 2nd week, in an attempt to keep me in the US for the period between my I94 expiry (25-Jul-2015) and H1 start date (Oct 01).

My intention is stay and continue working in the US. Can you please advice on the below questions?

1) Can I use the 280 days period after my I94 expiry to continue working? Assuming my L1 extension invites an RFE, how this will be affected? How early can USCIS get back with and RFE, and how late can I respond to it?

2) If my L1 extension is rejected, Can I go out of the US and continue H1B under consular processing with the same petition? What will happen if my H1B petition is approved before L1B rejection?

3) If my H1B petition is approved, can my company withdraw the L1B extension, so that my final status will be H1B? After the withdrawal, and before Oct 01, can I work in the US?

Please advice me a better way to handle this situation.

[raghvi]

My current situation - My 3 years L1B expires on 25-Jul-2015, both the visa and I94. My company will apply for my H1B (COS) on Apr 01. My company has also planned to apply for my L1B extension by Jul 2nd week, in an attempt to keep me in the US for the period between my I94 expiry (25-Jul-2015) and H1 start date (Oct 01).

My intention is stay and continue working in the US. Can you please advice on the below questions?

1) Can I use the 280 days period after my I94 expiry to continue working? Assuming my L1 extension invites an RFE, how this will be affected? How early can USCIS get back with and RFE, and how late can I respond to it?

2) If my L1 extension is rejected, Can I go out of the US and continue H1B under consular processing with the same petition? What will happen if my H1B petition is approved before L1B rejection?

3) If my H1B petition is approved, can my company withdraw the L1B extension, so that my final status will be H1B? After the withdrawal, and before Oct 01, can I work in the US?

Please advice me a better way to handle this situation.

1. Yes you can. You have to respond to RFE. There is no timeline for USCIS to get back to RFE, if you want early response file L1 extension request in premium. As for late, every RFE has a deadline, generally within 60 Days.
2. Yes. Even if H1 petition is approved before L1B rejection, your status change to H1 would still be valid only from 01-Oct-2015, so if your L1 extension is rejected you have to leave US.
3. If they withdraw the L1B extension your stay from L1B I-94 expiry onwards would become illegal. You cannot work on H1 before 01-Oct-2015.

The timing of your L1 I-94 expiry makes this a a complicated situation. Many a times, under similar circumstances, USCIS would raise an RFE for H1 asking to prove valid status, which you would not be able to unless you first get L1 extension approved. H1 petition approval and COS to H1 approval are two different things. You have to understand that your COS to H1(if approved) from 01-Oct-2015 would be valid only if you are in valid status on 30-Sep-2015. Technically you are not in valid L1 status on 30-Sep-2015 unless you have a L1 extension approved.

I would say apply H1 in premium on 01-April-2015 , and also L1 extension before 25-Jul-2015 under normal processing. This way even if L1 extension decision takes 3-4 Months, as they normally do, you can still work. In parallel if at all your H1 goes to RFE due to being asked valid status, respond to RFE with L1 extension receipt and USCIS might approve the H1 petition(based on its merit) but deny the COS to H1.

I would also suggest, to keep your records clean, that if L1 is rejected, irrespective of before 01-OCt-2015 or after 01-Oct-2015, and even if H1 approved with COS, then you leave US within a week to 10 days, and go for H1 stamping and return.


This is my opinion not legal advice.

[lingaa]

Thank you Raghvi, the explanation was very clear.

One related question - Are the petitions for L1B to H1B COS and H1B consular processing different? Specifically, in my case, since I am on valid L1B status as on 1-Apr-2015, I believe my company would apply for COS. If I leave US by 25-Jul-2015 (at the expiry of my I-94), can I still get H1 stamping at a consulate using the same old H1B petition?

[raghvi]

Thank you Raghvi, the explanation was very clear.

One related question - Are the petitions for L1B to H1B COS and H1B consular processing different? Specifically, in my case, since I am on valid L1B status as on 1-Apr-2015, I believe my company would apply for COS. If I leave US by 25-Jul-2015 (at the expiry of my I-94), can I still get H1 stamping at a consulate using the same old H1B petition?

A COS petition comes with the bottom part of the I797 having a I-94, a Consular one does not, irrespective, both are approval notices and you can go to the consulate with either of them.

This is my opinion not legal advice.