L1B expiring soon...what are the next possible options??

[Rajivvisa]

I am working with an IT company. I joined its India entity in Feb, 2007. I was working in India as a group lead. I was moved to USA on 17thOct, 2010 on L1B Visa on same position of group lead
On May 16, 2013 I was promoted as a Development Manager and working with my onshore and offshore team. Since 2013, I have 12+employee directly/indirectly reporting to me. From last 8 months, ~20 employees are reporting to me. Meanwhile my L1B was extended in 2013. My GC has also been initiated under EB2 category. It’s under PERM at this stage.
My wife is on H1B which started from Oct, 2014. She is working for a USA based company which agreed to start her GC process in September, 2015.

Other details….
1. I visited India for one month in 2013.
2. My current I-94 Valid– 13th September, 2015
Questions :
• Can my employer convert my L1B into L1A at this stage, with premium processing?
o Is there any condition of validity of L1B 6 month prior to applying for L1A?
o If no, how much time premium processing take?
• What should be my max out date in USA?
o 13th September, 2015 – my I94?
o 17th October, 2015 – 5 years after my entry in USA? If yes, what should I do to extend I94?
o 17th Nov, 2015 – 5 years + One month which I spent in India? If yes, what should I do to extend I94?
• Is there any option of getting student Visa?
o Do I need to resign from my current job?
o How much time to take to get work authorization?
o Any risk?
• On last options, I decide to go for H4 status, how much time it takes?

[raghvi]

- Yes your employer may but one of the common RFEs if done so is if you were performing L1A role from last 8 Months why was L1B to L1A not applied at that time.
- The condition is that one needs to be performing the role of the manager/executive for at least 6 Months. When an alien was initially admitted in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months in order to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by DHS in an amended, new, or extended petition at the time that the change occurred or based on a new Blanket L I-129S petition adjudication. But the part that your employer didnt fulfill was taking the approval of USCIS when your role changed.
-Premium Processing 2-4 weeks, if no RFE, even if RFE it would be generated within that time frame if done under premium.
- You would need to calculate the number of days spent in US on L1B status. Maximum allowed is 5 Years on L1B so if your I-94 is expiring before your 5 Years physical completion, then an extension can be filed to recapture the remaining period. The extension has to be filed before current I-94 expiry.
- Getting a visa and changing status to Student visa are two different things, a visa stamping is done only at US consulate outside US. But you can apply for a Change of Status while you are in US from L1 to F1.
- You cannot work full time while on F1.
- Read http://www.uscis.gov/working-united-...and-employment for employment while on F1.
- L1 to H4 can take 2-4 Months. You cannot work while on H4 without first getting EAD.

Hasnt your employer initiated a H1 for you? Because you are looking at least 6+ Years to get GC so would need valid visa to work full time till then and either H4 EAD or H1 seems to be the only long term options. Earliest you might get H4 EAD/H1 is 2016 end.

As we are talking multiple visas, L1A, H1, H4, F1, would advise you to talk to an attorney to determine the best option.

This is my opinion not legal advice.

[Rajivvisa]

Thanks and further queries...

Thank you so much for detailed response.

My employer tried for H1 but its was not picked in last two years lottery. Now, I am trying to find option to stay in USA - with work visa, preferably with same company as my GC is in process. I am understanding that my employer can apply for L1A at this stage as well but I am not sure why they are saying because two months are left so they can't try...Is there any legal risk to organisation if they will try?

What is the eligibility criteria for L1A? Is it must to have X number of direct reporting employees or your role/responsibility defines them? As I mention, I am handling team of ~20 members and most of them are offshore so wanted to understand if it will create any issue.

There are certain universities which provides CPT from the first day of academic course. If I go for that option, is there any risk? If yes, then kindly advise.

Thank you

- Yes your employer may but one of the common RFEs if done so is if you were performing L1A role from last 8 Months why was L1B to L1A not applied at that time.
- The condition is that one needs to be performing the role of the manager/executive for at least 6 Months. When an alien was initially admitted in a specialized knowledge capacity and is later promoted to a managerial or executive position, he or she must have been employed in the managerial or executive position for at least six months in order to be eligible for the total period of stay of seven years. The change to managerial or executive capacity must have been approved by DHS in an amended, new, or extended petition at the time that the change occurred or based on a new Blanket L I-129S petition adjudication. But the part that your employer didnt fulfill was taking the approval of USCIS when your role changed.
-Premium Processing 2-4 weeks, if no RFE, even if RFE it would be generated within that time frame if done under premium.
- You would need to calculate the number of days spent in US on L1B status. Maximum allowed is 5 Years on L1B so if your I-94 is expiring before your 5 Years physical completion, then an extension can be filed to recapture the remaining period. The extension has to be filed before current I-94 expiry.
- Getting a visa and changing status to Student visa are two different things, a visa stamping is done only at US consulate outside US. But you can apply for a Change of Status while you are in US from L1 to F1.
- You cannot work full time while on F1.
- Read http://www.uscis.gov/working-united-...and-employment for employment while on F1.
- L1 to H4 can take 2-4 Months. You cannot work while on H4 without first getting EAD.

Hasnt your employer initiated a H1 for you? Because you are looking at least 6+ Years to get GC so would need valid visa to work full time till then and either H4 EAD or H1 seems to be the only long term options. Earliest you might get H4 EAD/H1 is 2016 end.

As we are talking multiple visas, L1A, H1, H4, F1, would advise you to talk to an attorney to determine the best option.

This is my opinion not legal advice.

[Rajivvisa]

L1A after L1B

Raghvi can you please respond or let me know best attorney for my case?

[raghvi]

As I said, the chances of RFE are high as an L1 amendment was not done when you actually got the promotion, and now with only two months remaining if L1b to L1A are done the outcome may not be favorable that's why the employer may be reluctant to go ahead. I dont know about CPT from day one on F1.As for attorneys google around for the same in your area am sure you would find good ones.

This is my opinion not legal advice.