L1B to H1B conversion

[Waitingforevercali]

Need suggestion regarding my situation (lengthy writing but a stressful situation for me ):

I am on L1B and my L1B will max out in DEC-2021 (complete 5 years).

My L1B expired in APRIL-2021 and I applied for L1B extension in March-2021 for the months pending for max out. I haven't still received an RFE or approval yet. Still waiting.

My employer registered me into H1B lottery in MAR-2021 for fiscal year 2022. It went through lottery and my application was picked. My employer is however now mentioning that there cannot be two applications (one fresh H1B and one L1B extension) at the same time submitted to USCIS. The last date for filing H1B petition is 30-JUNE-2021.


My questions are:

1)Could this rule that we cannot have 2 applications (one fresh H1B and one L1B extension) at the same time submitted to USCIS, be a rule at my employer level or is this a legal rule at USCIS. If this is only for my employer I will try to convince them to go ahead with H1B while my L1B is under processing with USCIS. I am unable to get a clarity on this from my employer so reaching out here for help.

2)If above is legally not a possible option, I am planning to have my L1B raised to premium processing and hope to get an approval and then request my employer to file my H1B to USCIS.That way when they file H1B there won’t be 2 pending applications with USCIS. Or if I get an RFE on my L1B, It will be an edge case as H1B petition filing closes on 30 JUNE 2021.

3)Is it possible for an employer to withdraw pending L1B extension application? In that case what would happen to my H1B?

What would be the best way to go about this.


Additional note: Currently my employer has initiated my green card as well, however I may have the I-140 only by 2022. Also because L1B does not have unlimited extension even with approved I-140, I need my visa converted to H1B in order to be able to stay in US post DEC-2021. From then on it will be unlimited H1B extension.

[Libra_14]

1)Could this rule that we cannot have 2 applications (one fresh H1B and one L1B extension) at the same time submitted to USCIS, be a rule at my employer level or is this a legal rule at USCIS. If this is only for my employer I will try to convince them to go ahead with H1B while my L1B is under processing with USCIS. I am unable to get a clarity on this from my employer so reaching out here for help.

No, one can have multiple non-immigrant application running in parallel at USCIS end. This may be a rule at employer level.

2)If above is legally not a possible option, I am planning to have my L1B raised to premium processing and hope to get an approval and then request my employer to file my H1B to USCIS.That way when they file H1B there won’t be 2 pending applications with USCIS. Or if I get an RFE on my L1B, It will be an edge case as H1B petition filing closes on 30 JUNE 2021.

No need, both can be running in parallel.

3)Is it possible for an employer to withdraw pending L1B extension application? In that case what would happen to my H1B?

What would be the best way to go about this.

Certainly, they can withdraw L1B & H1B will still continue.

Additional note: Currently my employer has initiated my green card as well, however I may have the I-140 only by 2022. Also because L1B does not have unlimited extension even with approved I-140, I need my visa converted to H1B in order to be able to stay in US post DEC-2021. From then on it will be unlimited H1B extension.

That's correct. Once your I140 is approved, better to switch to H1B.

[Waitingforevercali]

Thank you so much for your response Libra!. The information you provided is very helpful as I wasn't able to find it anywhere else. I truly appreciate it!.

I had some connected questions to it:
If I somehow convince my employer to override their rule and ask to file for H1B with my L1B extension in process then how would below cases work?
1) I see some posts mention consular processing. Is it applicable in this case? So If my employer will file my H1B will they need to file as "consular processing". In that case, if I first get my L1B approval before my H1B approval, will I have to travel back to my home country immediately. If yes, then should I travel right after L1B approval is received or wait till I get H1B approval and then travel? Or can I continue to stay in US till OCT-2021 and then start woking in H1B?
2) If I first get my H1B approval and if I get my L1B approval later, will my H1B be invalidated as L1B will be latest?

[Libra_14]

If I somehow convince my employer to override their rule and ask to file for H1B with my L1B extension in process then how would below cases work?
1) I see some posts mention consular processing. Is it applicable in this case? So If my employer will file my H1B will they need to file as "consular processing". In that case, if I first get my L1B approval before my H1B approval, will I have to travel back to my home country immediately. If yes, then should I travel right after L1B approval is received or wait till I get H1B approval and then travel? Or can I continue to stay in US till OCT-2021 and then start woking in H1B?

To switch from L1B to H1B you'll need to move out of USA, get H1B stamped & then return to USA using your H1B visa. You can stay in USA until you have approved or pending L1B pettion - No need to leave USA, until you get H1B petition approved.

2) If I first get my H1B approval and if I get my L1B approval later, will my H1B be invalidated as L1B will be latest?

No, both will still be valid - until you switch. Usually H1B doesn't come with I94, but L1B extension will come with your new I94.

[Waitingforevercali]

To switch from L1B to H1B you'll need to move out of USA, get H1B stamped & then return to USA using your H1B visa. You can stay in USA until you have approved or pending L1B pettion - No need to leave USA, until you get H1B petition approved.

No, both will still be valid - until you switch. Usually H1B doesn't come with I94, but L1B extension will come with your new I94.

Thank you for your responses regarding my questions!!!. I got my L1B approval now and hence now I can go ahead with my H1B petition as per my employer. I plan to stay here until November 2021 and travel to my home country to get my H1B stamped so I can come back on my H1B. I am hoping the H1B will be effective starting OCT even without stamping as it will be a COS from L1B to to H1B for me.

[Libra_14]

Thank you for your responses regarding my questions!!!. I got my L1B approval now and hence now I can go ahead with my H1B petition as per my employer. I plan to stay here until November 2021 and travel to my home country to get my H1B stamped so I can come back on my H1B. I am hoping the H1B will be effective starting OCT even without stamping as it will be a COS from L1B to to H1B for me.

If you move out of USA & want to come back on H1B, you'll need that H1B visa stamped in your passport.