EB2 started on L1A, then moving to H1B

[chirag007]

Hi,

 

I was in US for 3.5yrs from 2007 to 2011 and my last approved H1B petition expired Apr-2012.

 

From India,my company then filed my L1-A visa in FEB-2014, that is after 2.5yrs after I left in 2011.

 

Now I am in US for last 1yr and 5months with L1A stamped till Dec-2017 (3years in first time).

 

My company then filed by Green Card in EB2 category in Feb-2015 and the process is currently under PERM stage.

 

My queries are:

1.       If I want to switch jobs, can I ask my new employer to apply my H1B visa under Out of Cap H1 category as I was on H1B for 3.5yrs? My total stay (H1 & L1) in US till now is around 5yrs with a 2.5yrs gap.

 

2.       If I switch to H1B (whether Out of Cap or fresh H1 filing in Apr-2016), will it have any impact on my current GC processing or I140?

 

My aim is to get I-140 approved on my current visa with current employer and then get H1 and switch jobs.

 

Thanks!

 

[jairichi]

1. Yes, you are cap exempt. You are eligibile for 1 year on H1B.

2. No.

[chirag007]

Thanks jairichi,

 

1) You put me in another confusion as why will I get H1B only for 1year because I stayed out of US for 2.5 years and my assumption is that now if I use out of cap route to get  H1, I should get for 6years.

 

2) Incase I get H1 for one year, what will I do after one year if my PERM is not yet approved by then (say in audit)? Can I get my H1B extended with PERM on audit from previous employer?

 

3a) If I decide to stay with current employer till PERM gets approved, I will only have few months left on H1 for new employer to transfer. Is there a minimum number of months left on 6yrs for me to be able to apply for H1 out of cap?

 

3b) Idea is to get PERM approved and then switch jobs and then get into the loop of infinite extensions on H1.

 

Thanks in anticipation,

[jairichi]

Thanks jairichi,

 

1) You put me in another confusion as why will I get H1B only for 1year because I stayed out of US for 2.5 years and my assumption is that now if I use out of cap route to get  H1, I should get for 6years.

 

2) Incase I get H1 for one year, what will I do after one year if my PERM is not yet approved by then (say in audit)? Can I get my H1B extended with PERM on audit from previous employer?

 

3a) If I decide to stay with current employer till PERM gets approved, I will only have few months left on H1 for new employer to transfer. Is there a minimum number of months left on 6yrs for me to be able to apply for H1 out of cap?

 

3b) Idea is to get PERM approved and then switch jobs and then get into the loop of infinite extensions on H1.

 

Thanks in anticipation,

1. Only if a cap subject H1B petition is filed after staying outside US for a year one will be eligible for 6 years. In your case if H1B petition was filed as cap subject it will be 6 years - 1.5 years on L1A. If filed under cap exempt then 6 years - (3.5 years on H1B and 1.5 years on L1A).

2. With a PERM pending for more than a year you can get 1 year extensions.

3a. No minimum months. But, no employer will apply for a H1B petition for a validity for a month or two. And, remember approved PERM does not get you a H1B extension.

3b. PERM or I-140 pending for more than a year for decision will get you 1 year extensions on H1B. Approved I-140 will get you 3 year extensions.

[chirag007]

Thanks jairichi.

Let me start EB2 and wait for PERM and I-140 approval and then depending on the dates, I will ask a followup question.

Thanks again!