L1B to H4 COS

[P_Pat]

I am on L1B visa working for employer ABC. I 94 is expired in May 2011, employer has filed for extension, got RFE, responded to RFE. I do have the receipt number.

After 30th sep, Employer is not able to find projects for me as per my preferred location(due to family constraint) and is asking me to travel back to home country.

I do not want to go back and I am planning to resign from the company in 1st week of Oct.

My husband has valid H1 till 2014. Can I file COS from L1 to H4 before I resign from the company and continue my stay in US after that?

I understand that usually COS approval Usually takes 3 months these days, so at the time my case application is picked up I will not be on L1 status, will that impact me in anyway?

[JoeF]

You are legal while the COS to H4 is pending, provided that the COS is filed while you were still in valid L1 status.

[my2239]

Good question

Generally, until USCIS takes action on a petition, you are deemed to have no changes in status and no changes in benefits due to the application

In that context you may try (with some risk) to work while your petition is being worked on by USCIs

Remember though that there is 1 operational concern

Let us say you apply on November 01, 2011

USCIS acts on your application on say Jan 01, 2012

Somehow on that night you forgot checking the status of your application online and it is another week before the approved petition reaches you

If you did not stop working during this 1 week and your petition (approved) had an approval date in the past then there is reasonable evidence to believe you violates status and hence you could be analyzed for the 3 year ban

However this operational concern is equally understood by USCIS and I have not heard of cases where they used it detrimentally

But you never know

Safest way should be to stop working the day you apply for COS

Ideally to make it even more safe, you can use your paid leave or even better unpaid leave of absence so that you can argue your case later if there is trouble stating that you never worked and hence never violated status

Other than that your approach seems to be fine

[P_Pat]

Thanks for the reply. I have few more questions 

say I get my case decision-approval my end of Oct, and I continue working till I get my approval, and on 1st Nov apply for COS and also resign from the company. With 2 weeks notice, my end date in the company will be 15th nov or so. Is this safe? I cannot apply for COS unless I am in status, and if I stop working with ABC then they will cancel my L1 which means I will be out of status.

say I get my case decision -rejection, then I can I apply COS? Or I need to leave US and stamp H4 in India and reenter?

Also you talked about unpaid leave of absence, is that allowed while I am on L1?

[my2239]

Q1: say I get my case decision-approval my end of Oct, and I continue working till I get my approval, and on 1st Nov apply for COS and also resign from the company. With 2 weeks notice, my end date in the company will be 15th nov or so. Is this safe?

Answer: For L1B to H4, there is only 1 application: I 539 you need to file so the extension of stay and change of status is requested on the same application

So the above question does not arise

In terms of safety, It is best to go on leave of unpaid absence even while your petition is pending or even better go abroad and then apply for the whole process of you want to be absolutely safe

q2: I cannot apply for COS unless I am in status, and if I stop working with ABC then they will cancel my L1 which means I will be out of status.

Answer: That is incorrect

If you stop working for the employer and leave the country, that is when you are not in status. When working with a company and taking a leave (paid or unpaid as long as it is approved, you are still in status)

Q3:

say I get my case decision -rejection, then I can I apply COS? Or I need to leave US and stamp H4 in India and reenter?

Answer: As explained above, there are no 2 applications

Just one: I 539 for extension of stay as well as change of status

If you are rejected, you start acquiring illegal presence from the day you are rejected and can be subject to 3 year ban (although rarely implemented by uscis in cases like this)

Going back to your home country means two things: One all penidng applications are deemed abandoned, 2 All statuses are deemed discontinued on all active petitions which means you are neither in L1 status nor in any other

You are just a citizen of your home country who was once authorized to work in US that is all

Q4:Also you talked about unpaid leave of absence, is that allowed while I am on L1?

Answer: That depends on your companies rules, the state you live in and any other local jurisdiction laws

Most companies allow for unpaid leave as it makes no difference for them especially as this case is genuine and you will inform them (hopefully) that the reason for taking leave is to comply with USCIS regulations

Example: My company allowed for unpaid leave when I exhausted my paid leave and I needed time off to take care of my wife who was suffering from a rare disorder and could not travel back home as per doctors strict instructions

The froze my pay and repaid me from the day I joined back (about 2 months later)

I indicated this in all applications truthfully inclusive of my green card and it never created any problems

Telling the truth and only the truth will always put you in a good stead (or at least a safe position)

Thanks for the reply. I have few more questions

say I get my case decision-approval my end of Oct, and I continue working till I get my approval, and on 1st Nov apply for COS and also resign from the company. With 2 weeks notice, my end date in the company will be 15th nov or so. Is this safe? I cannot apply for COS unless I am in status, and if I stop working with ABC then they will cancel my L1 which means I will be out of status.

say I get my case decision -rejection, then I can I apply COS? Or I need to leave US and stamp H4 in India and reenter?

Also you talked about unpaid leave of absence, is that allowed while I am on L1?

[P_Pat]

Thank you very much for detailed explanation....really appreciated.

My company is not ready to give me a single day of unpaid leave... And all paid leaves are over.. So I have decided to resign here and goto India or Mexico, stamp H4 and re-enter. Fingers crossed..