currently in L1B. can we use approved unused H1B Petition to change the status

[Priyanka_us]

Hi,

Let me explain my case can you please help me with the queries.

I am currently in L1B for an employer A. I am maxing out in June 2014 in L1B.

I applied for H1B through a consultant(Employer B) on 2008 and the H1B Petition is approved. but till now i havent stamped the H1 nor used the H1B Petition.

I read in certain forums that the unused expired approved petition can be used for 6 years and eligible for cap exempt. Following are my questions.

1) Am i eligible for CAP Exempt and can i change my status from L1B to H1 using my petition from 2008?

2) The employer B is saying that the H1B was done through the consular processing and he says that i should have got it stamped or been in this H1 status to be eligible for the cap exempt since the H1B processing was done through consular processing? Is that True? Whats the process for using the H1 B obtained through the consular processing.

3) If i can get the CAP Exempt using the H1B petition  obtained through consular processing do i need to travel outside the country and get it stamped?

Please clarify these questions. Thank you all for your help.

Regards,

Priyanka.

[jairichi]

Hi,

Let me explain my case can you please help me with the queries.

I am currently in L1B for an employer A. I am maxing out in June 2014 in L1B.

I applied for H1B through a consultant(Employer B) on 2008 and the H1B Petition is approved. but till now i havent stamped the H1 nor used the H1B Petition.

I read in certain forums that the unused expired approved petition can be used for 6 years and eligible for cap exempt. Following are my questions.

1) Am i eligible for CAP Exempt and can i change my status from L1B to H1 using my petition from 2008?

2) The employer B is saying that the H1B was done through the consular processing and he says that i should have got it stamped or been in this H1 status to be eligible for the cap exempt since the H1B processing was done through consular processing? Is that True? Whats the process for using the H1 B obtained through the consular processing.

3) If i can get the CAP Exempt using the H1B petition  obtained through consular processing do i need to travel outside the country and get it stamped?

Please clarify these questions. Thank you all for your help.

Regards,

Priyanka.

1. Yes, you are cap exempt.

2. Employer B files a cap exempt change of status petition from L1B to H1B and on approval you can start working for employer B without the need to have a visa stamped in your passport. Only if H1B petition is approved but a change of status is denied i.e. your I797 does not have an I94, then you would need to exit and enter US with a valid H1B visa.

3. Refer 2.

[Priyanka_us]

Thank you.

 

So there is no difference between an unused H1B petition that is approved by a consular process and an unused H1B petition approved by the normal process?

 

Both of them can be used for a change of status within 6 years if not used previously?

[jairichi]

Thank you.

 

So there is no difference between an unused H1B petition that is approved by a consular process and an unused H1B petition approved by the normal process?

 

Both of them can be used for a change of status within 6 years if not used previously?

Yes, that is correct. But, since you have stayed 5 years on L1B you would get 1 year of H1B as max allowed of 6 years stay on H1B includes time spent on L1A or L1B.