L1 to H1 Visa conversion - Last Action rule

[vincentanand]

I am on L1 Extension for Company A and I left USA on 10/3/2011. Also there was a petition filed for L1 to H1 conversion by same Company A. I went to L1 Extension Visa stamping on 11/2/2011 and it was approved.

Meanwhile, I have got my L1 to H1 'Change of Status' (COS) also approved from 10/27/2011 till 05/13/2014.

Now am I on L1 or H1? I want to travel on 11/14/2011 and will I have any questions at port of entry?

As per last action rule, what is my Visa status? I have checked with my company and they told me that as I was not physically present in US during the 'Change of Status' (COS), and so there is no status change and I am still on L1. And also, during the stamping, they approved the L1 visa, so it is not cancelled. Is it true?

I don't want to make big journey and get issues at the port of entry. Please help!

If i enter with L1 status, later can I use the approved H1B petition, if i want to change the employer?

[pontevecchio]

You are in no status now. Since you have an approved L1 extension and visa and since you are being sent by the company for a L1 purpose you will show the L1 approval and visa on entry and will then be in L1 status.

The total time period L1B +/- H1 STATUS IS 6 years. The fact that you have been cap counted remains a fact. Subject to the total of 6 years any sponsor can file a non cap H1 petition for you in future with COS or CP. Each new H1 employer files a new H1 petition and non cap subject to the total of 6 years.

[vincentanand]

I have entered united status with L1 visa. But now i have h1 also valid till may 2014. I went to extend my driver's license.

They found that the L1 I-94 is valid and H1 I-94 is not coming on the system.

So does that mean that i am on L1? how could i change it to h1?

[pontevecchio]

You would seem to be in L1 status. Hopefully you are working for the L1 employer.

[vincentanand]

Both my L1 and H1 employers are same. But my employer pays me under H1B status.

How can i get it changed in USCIS? Should I inform my employer or USCIS?

[pontevecchio]

What does your I94 say? Secondly what difference would it make? You can get a DL in L1 status too.

[vincentanand]

I got the driver's license in L1 status.

The difference is that L1 is valid till aug-2013, but my h1 is valid till may-2014.

Also, my employer pays more in h1 than in l1. So i want to be in h1.

I have two I-94. One is what i got when i entered into the country..it says L1.

But my h1b visa also has a I-94 attached and it says h1. Is it what you looking for?

[pontevecchio]

You are in L1 status. If you want to be in H1 status leave and come back with a H1 visa after talking to your employer.

[vincentanand]

ok. Thank you.

Assuming i continue in L1 visa, what happens when my L1 expire in Aug, 2013?

Furhter i know many of my colleagues converted their L1 to h1. They did not leave the country to change their status.

Can I change the employer with my h1? or do i need to go out of country and come back for it too?

[pontevecchio]

Subject to the total of 6 years L1 plus H1, you can have a sponsor file a H1 petition with COS from L1 and start on approval.

[vincentanand]

If i travel to India in next month (Aug-2012), can i enter back USA without going for H1B stamping? I still have valid L1 visa stamped up to Aug 2013?

[pontevecchio]

What will you be doing when you return?

[vincentanand]

I will work with same employer. (Both my L1 and H1 employers are same).

[pontevecchio]

If you enter on the L1 visa you will remain in L1 status until a new employer files and gets an H1 approved with COS from L1. If you want to change to H1 status with the current employer leave and come back on a H1 visa. A sane employer will possibly not pay again for filing a H1 petition with COS in order to save you from H1 visa stamping which seems to be the object of the whole exercise.

[vincentanand]

I am little confused. I have a H1B's I-797A with I-94 attached at the bottom valid till 05/13/2014. Is it not valid now as I am on L1 visa?

If I change the employer, does the new employer need to file H1B with COS or just to transfer my current H1B visa without COS?

[pontevecchio]

The approved H1 petition remains approved. A new employer needs to file a H1 petition non cap for you with either COS from L1 in which status you are now or for CP. Why this immense effort to avoid the H1 visa stamp?

[vincentanand]

No, it is not to avoid H1 stamping.

I got offer from new employer A, but my I-140 is in the progress with my current employer in EB3.

So i am not able to join employer A immediately. I have asked 2 months time to join and i hope i get good news on I-140 within 2 months.

As soon as I get my I-140, I am planning on joining employer A with H1B and starting a new GC in EB2.

So i have asked if employer A needs to file a new H1B petition or just a transfer with COS.

If employer A files new H1B petition, nowadays it gets approved only for a year. But my current approved H1B is having validity till 05/2014 and so i wanted to keep this H1B valid.

[pontevecchio]

A "TRANSFER" is basically a new NON CAP H1 petition applied for by the new sponsor. Say your I140 is approved. A can then file your H1 petition. Nothing gets transferred. Based on an approved I140 you are entitled to 3 year extensions beyond the initial 6 years. Obviously all H1 rules come into play. Client letters etc. where applicable.

[vincentanand]

Thank you for the details. I went to Canada and got H1B visa stamping. Then I filed I-140 with the new I-94 in H1B status. Waiting for the approval...