Urgent help needed - H1B to L2 to H1B

[Abhishake4]

I am in a tricky situation. My wife came to US in 2008 on F1 (we were not married then) after finishing school she got a job with a big software company and she converted to H1B in Jan 2011. I came here in June 2010 on L1A visa. We got married in August 2011 in a court in california. My company filed my 140 in EB1 category in Jan 2012 and currently there is a RFE pending on it. I will be applying GC for my wife as well.
Last month she got laid off from the company as part of a massive job cut. We anticipated this layoff and filed a COS to L2 in May.
Now she got a new job and the company is willing to file a new H1B for her. But their attorney is telling us that they will not file the H1B until the L2 is approved. The L2 is going to take a lot of time as we just saw this week that there is a RFE on that as well. We don't know what it is.
My question is should she go back to the home country and apply a fresh L2 at the consulate abandoning the COS as this is what her attorney has suggested? Is there a risk associated with this? Will it matter that I don't have my L2 extension stamped (my L1 ended in Jan 2012 and I got an extension). Also, we don't have any marriage photograph but we do have the marriage certificate and other proofs of living together (bank account, lease, Driving license with same address, insurance etc.)
Somebody please advice the best direction to go.
Thanks

[shervin143]

The lawyer might be worrried about the last action rule. If they file H1B and if L2 gets approved after the H1B approval, then your wife's status will be L2 and she cannot work unless the company files another COS to H1B she leaves the country and return back in H1B visa. Also, it is not advisable to leave the country when the COS is in progress. If she leaves now, then COS to L2 might get denied and any time spend in U.S after the last working day with the last H1B employer can get treated as out of status period. The COS to L2 will take about 2-3 months to get approved.

Even if she leaves and return back in L2 and if the company files the H1B and gets it approved and for some reason if the L2 which is already filed doesn't get denied (There are cases where USCIS overlooked the exit record and approved the petition with a new I-94), and if the L2 gets approved later, she will again go back to L2 status and she won't be able to work. The best option is to wait and then file the H1B.

[Abhishake4]

The lawyer might be worrried about the last action rule. If they file H1B and if L2 gets approved after the H1B approval, then your wife's status will be L2 and she cannot work unless the company files another COS to H1B she leaves the country and return back in H1B visa. Also, it is not advisable to leave the country when the COS is in progress. If she leaves now, then COS to L2 might get denied and any time spend in U.S after the last working day with the last H1B employer can get treated as out of status period. The COS to L2 will take about 2-3 months to get approved.

Even if she leaves and return back in L2 and if the company files the H1B and gets it approved and for some reason if the L2 which is already filed doesn't get denied (There are cases where USCIS overlooked the exit record and approved the petition with a new I-94), and if the L2 gets approved later, she will again go back to L2 status and she won't be able to work. The best option is to wait and then file the H1B.

Thank you for the quick reply. We have decided that she will go back to home country and we will revoke the pending COS petition. There is a RFE on the COS so I believe there is no way USCIS is going to approve it in future. The new company will file the H1B petition with counselar notification and she will come back with a new H1B visa stamp. I hope there is no complication in proceeding this way.

[shervin143]

Well, if you are planning to withdraw the L2 application, then ask her to leave the country as soon as possible. That way, the at least the out of status period can be limited. Let the new employer file the H1B for CP and when it gets approved, she can appear for the H1B interview and when approved, she can travel in H1B visa and start working for the employer. The employer can file the H1B in premium and get the result within 15 days.

Thank you for the quick reply. We have decided that she will go back to home country and we will revoke the pending COS petition. There is a RFE on the COS so I believe there is no way USCIS is going to approve it in future. The new company will file the H1B petition with counselar notification and she will come back with a new H1B visa stamp. I hope there is no complication in proceeding this way.

[Abhishake4]

Well, if you are planning to withdraw the L2 application, then ask her to leave the country as soon as possible. That way, the at least the out of status period can be limited. Let the new employer file the H1B for CP and when it gets approved, she can appear for the H1B interview and when approved, she can travel in H1B visa and start working for the employer. The employer can file the H1B in premium and get the result within 15 days.

That is exactly what we are doing. She is leaving this weekend and the the new employer will file the H1B on Monday. My only question is that will she be considered out of status even if the L2 COS is pending and it was filed before her layoff? It never got approved but we can always say that she needed to travel to India and it was not possible to wait for the approval.
Thank you for your help.

[shervin143]

Technically if you leave the country when the COS is pending and if the L2 doesn't get approved with a new I-94, then the time spend in U.S between the last job (last pay slip) until the person was in U.S will be treated as out of status. Only the approval from USCIS with a new I-94 will bridge the gap and make the stay legal.

If she is anyhow planning to leave, then keep the L2 application active. Ask her to keep a copy of the L2 receipt to prove that L2 was filed on time. If the VO asks, she can show the L2 receipt and explain that she had to travel and was unable to wait for the decision from USCIS as it was taking time.