L1A to H1/H4 - Please advise.

[vasudevadv]

HI,

I am on L1A since Apr 2010 in US and will complete 5 years in Apr 2015, and I will still have 2 more years of validity to complete 7 years. My current employer denied to apply for a GC.

If I had to Switch to H1 this year, my new employer is saying I can not because I have completed 5 years and NO perm has been filed yet. Also, if I switch to H1, my stay validity will become 6 years by then.

Question:
1. Can I still go with H1 if my new employer agrees and apply for PERM/GC as soon as H1 gets approved. Will this allow me to continue to stay beyond 6 years or should I have to go back to India for an year?

2. My Wife is on H1 and would be applying for GC soon. If I switch to H4 and as soon as her I-140 gets approved, can I start to work again? In this case, do I still have to go back to India and stay out of US for an year?

Please advise.

[raghvi]

HI,

I am on L1A since Apr 2010 in US and will complete 5 years in Apr 2015, and I will still have 2 more years of validity to complete 7 years. My current employer denied to apply for a GC.

If I had to Switch to H1 this year, my new employer is saying I can not because I have completed 5 years and NO perm has been filed yet. Also, if I switch to H1, my stay validity will become 6 years by then.

Question:
1. Can I still go with H1 if my new employer agrees and apply for PERM/GC as soon as H1 gets approved. Will this allow me to continue to stay beyond 6 years or should I have to go back to India for an year?

2. My Wife is on H1 and would be applying for GC soon. If I switch to H4 and as soon as her I-140 gets approved, can I start to work again? In this case, do I still have to go back to India and stay out of US for an year?

Please advise.

1. If you have not applied for H1 already there is very less likelihood of you moving to H1 this year, and yes ,agreed that by the time you eventually do your 6 Years would have completed. Merely applying PERM does not allow one to stay beyond 6th Year on H1. If you apply PERM 365 days before completion of 6th year you can extend H1 by 1 Year OR if your I140 is approved before 6th Year completes then you can request for a 3 Year H1 extension. In either cases applying GC ASAP is in your interest.
2. With new guidelines coming out soon for H4 to be eligible for EAD in case the I140 is approved, you may not need to stay out of US for a year.

This is my opinion not legal advice.